Did MFI-1 sufficiently explain the sources of income and identify actual incomes?
134 The Commissioner's main contention before this Court was that MFI-1 and the Attachment were insufficient to identify the taxpayers' actual assessable incomes and, as such, it did not, either by itself or with other evidence, satisfy the onus under s 14ZZK(b)(i). Ms Wheatley QC submitted that MFI-1 was inaccurate in myriad respects and incomplete. For the reasons which appear in the following paragraphs, that submission should be accepted.
135 Prior to turning to a detailed consideration of MFI-1, it is appropriate to note an initial objection by Mr Hack QC for Mrs Ross to the Commissioner's submissions as to the inadequacy or inaccuracy of MFI-1. He submitted that no objections of this nature was taken below and there is no appeal ground which specifically raises the issue. Whilst it is correct that no detailed analysis of MFI-1 was undertaken by the Commissioner in his submissions to the Tribunal, that may not be especially surprising as the main focus of the taxpayers' case before the Tribunal concerned the veracity of the items included in the Asset Betterment Statements which underpinned the default assessments. As MFI-1 was adduced only at the very conclusion of the hearing, the issues which it raised could obviously not have been the subject of discussion and debate during its course. A further answer to Mr Hack's submission is that the Commissioner's contentions in this regard are advanced to support the proposition that it would be futile to remit the matter to the Tribunal for reconsideration as the evidence, including MFI-1 and the Attachment, were insufficient to satisfy the onus imposed on the taxpayers. As it was, the Commissioner sought leave to amend Notice of Appeal to include a ground as to the adequacy of MFI-1 and that was granted without objection by Mrs Ross. The result was that the main debate as to its veracity occurred before this Court and the parties were given leave to file written submissions in relation to that matter. The result was that over 100 pages of submissions were received in the form of schedules which minutely assayed the entries which had been collected in MFI-1 and the Attachment. As a result of some disagreements as to the veracity of the submissions which had been made by the taxpayers, the Commissioner sought and was given leave to re-open his case for the purposes of making further submissions. Ultimately, the hearing resumed for a further day, being a fourth day, to allow the parties to make submissions in relation to MFI-1 and the Attachment. Numerous issues arise from those submissions and they are dealt with below.
136 In their submissions to the Tribunal, the taxpayers alleged that MFI-1 and the Attachment disclosed their assessable income in the relevant years: see paragraphs 78 and 189 of the taxpayers' submissions to the Tribunal. The amounts which Mrs Ross asserted the taxpayers had established as being Mr Ross's true assessable income in the relevant income years was $37,450 in 2009, $27,405.85 in 2010, nil in 2011, $7,335.83 in 2012, $11,8414.03 in 2013, and $174,226.90 in 2014. For Mrs Ross, the amounts were $34,477.54 for 2013 and $7,770.77 for 2014, although noting that Mrs Ross had declared the amount of approximately $96,000 as distributions from the family trust in her return for the 2014 income year. It was far from clear that by the conclusion of the appeal they adhered to those figures. Indeed, they implicitly acknowledged the existence of errors in MFI-1 (and the Attachment) but retorted with the assertion that, if complaint had been made before the Tribunal, it might have been corrected and an adjustment could be made. This overlooks the difficulty that the document was advanced by the taxpayers as discharging their onus to positively prove what their assessable incomes were. Further, the making of "adjustments" is somewhat vague, but it appears that what was in contemplation was that, if an amount was found to be unexplained or insufficiently explained by the taxpayers, an alteration might be made to the quantum of taxpayers' assessable incomes. However, that is not an answer where the taxpayers have not established the nature of a particular receipt. As has been discussed above, apart from circumstances where the parties otherwise agree, it is not to be assumed that anything not explained falls on the income side. The taxpayers' onus is to show what their actual assessable income is, and that is not achieved by trying to explain away the amounts of the constitutive items in the asset betterment statement and admitting that where they fall short the amount is to be regarded as income.
137 In response to several of the deficiencies identified by the Commissioner in MFI-1 and the Attachment, Mrs Ross's submission is that those documents indicate the taxpayers accept that the amounts in question are assessable such that there is no reason for the Commissioner to complain. That, also, is no answer. First, MFI-1 and the Attachment were not advanced as evidence of anything with the result that assertions in them that an amount is "Not Assessable" or "Assessable" are mere statements by the legal representatives. It is not evidence of the truth of those statements which give a factual foundation to the amounts being derived from assessable sources or otherwise. Necessarily, the impugned payments remained unexplained receipts by the taxpayers. Second, even if the statements were given as evidence, they would be meaningless in the context of the objection. The taxpayers' obligation is to prove their actual assessable income. A statement by them that a receipt is not assessable is not sufficient to establish that it is not income and, conversely, a statement that a receipt is assessable does not render it as such. Third, such statements make the same erroneous assumption just discussed. The onus is only discharged by showing, inter alia, what is the actual amount of assessable income. The amounts expended from the bank accounts only operate as evidence or a proxy on which the Commissioner forms a judgment of assessable income for the purposes of the default assessment. They are not parts of a calculated assessment which might be reviewed with the parts not successfully challenged remaining as income.
138 In their submissions, Mrs Ross complained that the Commissioner did not cross-examine the taxpayers with respect to the manner in which the transfers of funds between the several accounts occurred or the reason for them. That criticism is accurate to an extent. However, until MFI-1 was produced at the very end of the hearing, it would have been difficult, if not impossible, for Counsel for the Commissioner to understand how the taxpayers' proposed to characterise the payments. The absence of any indication in the grounds of objection or the SFICs of double counting claims or of the rationale for the payments had the consequence that the import of the transactions in the bank statements could not have been apparent during the relevant parts of the hearing.
139 It is convenient to deal first with those matters in MFI-1 (and the Attachment) which pertain peculiarly to Mr Ross.
140 The Commissioner's first submission corresponds with a statement in paragraph 45 of Mr Ross's affidavit of 2 November 2017, where he referred to certain actions taken with respect to his bank account with the ANZ Bank ending in "3702". He claimed that a deposit of $25,000 made on 23 November 2009 into that account "must have been an accumulation of cash savings as I never did a job that paid that much." In MFI-1, an entry is made in the table relating to that account and the explanation for the amount is stated as being "Accumulation of cash savings as evidenced at para 45 of the Affidavit of Shane Ross sworn 2 November 2017". A notation is made that the amount is "Not Assessable". As Ms Wheatley QC submitted, that notation was not evidence and it did not enhance the explanation of the payment otherwise provided by MFI-1. Although Mr Ross deposed to the amount being cash savings, he does not identify the source of the funds or say anything to demonstrate that it was from a non-assessable source. The information provided does not disclose whether the amount of $25,000 should be included as Mr Ross's assessable income and, to that extent, it remained unexplained.
141 The Commissioner also referred to Mr Ross's affidavit of 2 November 2017 where he discussed the evidence in relation to a bank account ending in "5728" which he had with the ANZ Bank. In reference to attached bank statements relating to that account, Mr Ross said at paragraph 30 of his affidavit:
All the amounts I have described in hand writing as "salary" or "rent" in the account statement for ANZ account [ending in "5728"] are income in character including the 4 March 2013 $4,000 I refer to above. Annexed hereto and marked "SR-1" is a true copy of the account statement ANZ account [ending in "5728"] with my hand-written descriptions.
142 In the attached statements relating to that account, a deposit is recorded as having been made on 26 November 2012 in the sum of $4,504 with the description of "Card entry at Southport Branch". Mr Ross had apparently notated that entry with the words "Tax paid Salary" as, apparently, indicating that the funds were received as salary and that he had paid tax on that amount. In MFI-1, that amount is recorded in the tables for the relevant bank account and the solicitors inserted the following comment adjacent to it of:
This is salary as evidenced at paragraph 30 of Affidavit of Shane Ross sworn 2 November 2017 and page 8 of Annexure to Affidavit of Shane Ross sworn 2 November 2017.
143 However, in the course of the Tribunal's hearing, Mr Ross was examined in relation to this amount and asserted he had made an error in making the notation on the bank statements. He claimed that the amount, in fact, represented winnings from gambling activities. That accorded with a statement made by Mr Ross in a subsequent affidavit sworn on 3 November 2017 in which he claimed that the amounts were winnings. The point made by the Commissioner was that the solicitor's commentary in MFI-1 in relation to this amount was, at least on some of the material, inconsistent and that Mr Ross's vacillation as to the origin of the money made it impossible to identify his actual assessable income.
144 At page 100 of MFI-1, there appears a table which is headed, "Shane Ross bank accounts - debit transactions/withdrawals", which has a row for each of the nine accounts operated by Mr Ross and a column for each of the relevant income years. This table purports to show the amounts debited from each of these accounts in each of the relevant income years. For the 2009 income year, the total debits from the accounts was $353,188. However, the table at page 75 of the same document which is headed "Summary of Assessable Income as contended by the Applicant" purports to show that Mr Ross's income, as derived from the accounts, was only $37,450 ($35,910 in the Attachment). Ms Wheatley QC submitted that this disparity was not capable of explanation on the basis of there being transfers between Mr Ross's several accounts resulting in double counting. That was supported by reference to a second table on page 100 of MFI-1 which, itself, acknowledged there were no transfers between the accounts identified for the 2009 income year. There is, quite demonstrably, substantial force in Ms Wheatley QC's submission in this respect. On the material provided in MFI-1 and the supporting affidavits, it appears that, in the 2009 income year, expenditure by Mr Ross from the accounts totalled $353,188 and that none of this amount was attributable to transfers between Mr Ross' several accounts. In particular, the sum of $186,990 was debited from the ANZ account ending in "4864" and there was nothing to suggest that this money was transferred to any other account or, indeed, from another of his accounts. The only evidence of a transfer of funds between accounts in this income year concerns the sum of $2,023.18 which was deposited to the account on 19 June 2009. It is fair to conclude that the source of money to the accounts from which the funds were withdrawn were not explained at all by Mr Ross. Similar issues arise in relation to the 2010, 2011 and 2012 income years, being income years in which substantial withdrawals were made from the account. Based on the second table on page 100 of MFI-1, none of the expenditure from Mr Ross' accounts in those income years was attributable to transfers between his several accounts. In respect of the 2010 income year, Mr Ross asserted that his income was $27,405 (page 116 of the Attachment) but his withdrawals from this accounts totalled $67,428 (MFI-1 page 100). In respect of the 2011 income year, he reports his income as being "Nil" yet he withdrew $36,506 from his accounts. For the 2012 income year, he reports an income of $7,335 but the records show that he withdrew $119,056 from his accounts.
145 The tables on page 100 of MFI-1 also highlight other difficulties. One table shows that the total debits from Mr Ross's accounts in the 2014 income year totalled $2,012,033. Accepting the assertion that, of that sum, the amount of $1,273,565 was attributable to transfers between his accounts, this leaves a remainder of debits of $738,468. However, at page 75 of MFI-1, the total assessable income of Mr Ross based on the accounts was said to be only $174,226. The point made by the Commissioner was that there was no explanation as to how Mr Ross might have expended in excess of $738,000 on a claimed income of just over $174,000.
146 The Commissioner also referred to the table at page 75 of MFI-1, which purported to identify the amounts expended from Mr Ross's accounts (excluding transfers between accounts) which thereupon disclosed his assessable income. However, two bank accounts referenced in the table, being ANZ account ending in "7317" and ANZ account ending in "4404", were accounts of a company called S Ross Enterprises Pty Ltd which was the trustee of the S Ross Enterprises Trust. For the 2014 income year, an amount of $66,167 expended from ANZ account ending in "7317" is attributed to Mr Ross as being part of his assessable income for that year. In fact, that would appear to be a distribution from the trust to Mr Ross. However, in his tax return for that income year, Mr Ross identified that he had received $96,702 from the trust. This, so the Commissioner submitted, indicates that MFI-1 contains another significant error as to what was Mr Ross's actual income for that year. It may be that it understates it, although that merely accords presumptive weight to the assertion in the tax return.
147 A deposit of $14,000 on 2 November 2009 appearing in Mr Ross's ANZ account ending "3702" was not explained by him. The entry in MFI-1 asserts the funds were from "OSR NSW", presumably, the Office of State Revenue of New South Wales. Mrs Ross submitted that it should be inferred that the funds were not assessable, however without any knowledge of the circumstances in which the amount became payable to Mr Ross, no such inference to the requisite degree of satisfaction could arise. Some evidence of the underlying transaction would need to exist before any such inference would be available. Similarly, on 19 November 2009, a deposit of $1,000 was made to that account which was not explained in any way. Mrs Ross submitted that there was no cross-examination in relation to this amount, but that confuses the identity of the party who carried the onus of proof.
148 The commentary included in MFI-1 identified various amounts paid into Mr Ross's ANZ account ending in "3702" in the 2010 income year, as money received from labouring when there is no evidence to support the assertion. Although reference is made in MFI-1 to some of Mr Ross's evidence, it is misconceived and the payments in question do not fall within the referenced evidence. Mrs Ross submitted that these funds are identified in MFI-1 as being assessable and so no further explanation is required. The several ways in which that submission is erroneous have been referred to above.
149 MFI-1 also identifies multiple transfers of funds to Mr Ross's ANZ account ending in "3702" allegedly either from the account of Sharon Ross, being Mr Ross's mother, or by way of direct deposit by her. These payments occurred from 11 May 2010 to 12 September 2012 and are identified by MFI-1 as being "Deposits from Shane Ross's mother as evidenced at para 45 of Affidavit of Shane Ross sworn 2 November 2017". Although that paragraph refers to the making of deposits, the issue is dealt with more completely at paragraph 32 where Mr Ross deposed that he was incarcerated from 13 April 2010 to 13 October 2011 and that, during that period, his mother paid money into his account to assist his wife with living expenses. In his evidence to the Tribunal, he said that the payments ceased when he was released. The Tribunal ultimately accepted that payments up to 18 May 2012 were received from his mother to assist the family while he was incarcerated, but rejected the claim in relation to two further payments in that income year on the basis that they were irregular and did not fit the erstwhile pattern. For present purposes, the Commissioner identifies that, although Mr Ross's release from jail occurred on 13 October 2011, MFI-1 records payments continuing to be paid into his account allegedly from his mother until 12 September 2012. This does not accord with Mr Ross's evidence that the payments from Mr Ross's mother ceased when he was released and, as such, demonstrates an attempt to introduce evidence about those payments through MFI-1 when none existed. In other words, MFI-1 incorrectly seeks to explain substantial payments received by Mr Ross after 13 October 2011, when no explanation existed on the evidence. That deficiency concerns the amount of $32,260 in the period from 17 October 2011 for the 2012 income year and the sum of $64,270 for the 2013 income year. In this respect, the commentary in MFI-1 was misleading and inaccurate and had the effect of concealing substantial sums of unexplained income. It appears that the Tribunal omitted to consider the amount of $64,270 which is said in MFI-1 to have been received by Mr Ross in the 2013 income year from Sharon Ross. Mrs Ross submitted on this appeal that the fact that Mr Ross's evidence did not address these amounts may be rectified by adjusting the calculation of his taxable income. As mentioned previously, that is no answer to the taxpayers' omission in relation to these payments with the result that the amount remains unexplained.
150 A number of entries in MFI-1 relating to ANZ account ending in "4864" concern deposits in sums between $2,000 and $2,500 during the 2012 calendar year which total, approximately, $11,000. The account into which the funds were paid was a home loan account although the identity of the depositor is not stated. MFI-1 did not identify any explanation for these payments or the source of funds. There was no evidence from either Mr or Mrs Ross as to the origin of the funds. By her submissions, Mrs Ross observed that MFI-1 asserts that the amounts are assessable and they muse as to why the Commissioner is concerned with them. The inadequacy of that submission in relation to the issue under consideration has been set out above. The assertions that the amounts are "assessable" is not evidence. Even if they were, they would not satisfy the onus as they do not establish that the amounts are assessable income.
151 The Commissioner referred to a sum of $30,500 received by Mr Ross into his ANZ account ending in "5728" on 31 October 2012. In MFI-1, the notation made in respect of this amount is "These are gambling winnings as evidenced at paragraph 6 of Affidavit of Shane Ross sworn 2 November 2017". In the Attachment, references are given to a number of transcript pages from the Tribunal hearing. However, those transcript references reveal that Mr Ross initially claimed it was the receipt of a deposit which was returned after a transaction did not proceed but later claimed that it was money transferred from a betting account. Subsequently, Mr Ross's accountant told the Tribunal that the amount represented the return of a deposit from a transaction. Mrs Ross's response is that this confusion goes to weight and either way the amount is not assessable. Whilst there is some force in that, as the question is whether MFI-1 could possibly be relied upon as establishing the taxpayers' true taxable incomes, instances such as this, by themselves, demonstrate it to be less than fully reliable. Even when taking into account the nature of administrative decision-making, it is near impossible to ascertain how a Tribunal, faced with this evidence, might be satisfied on the balance of probabilities as to the origin of this amount so as to determine whether it was assessable income.
152 Similar comments can be made in respect of the entry relating to transfers of 11 payments to Mr Ross's ANZ account ending in "5728" from November 2013 to February 2014 totalling $11,000 which are identified in MFI-1 as the receipt of salary. That assertion was contrary to Mr Ross's testimony that he was always paid in cash for any work that he did. Although Mrs Ross submitted that this merely goes to weight, that is not correct. The question is whether the income is explained in the sense that the taxpayer has established what his actual income was. In relation to these payments, there was no evidence as to their origin or as to their nature. Mr Ross's evidence in relation to wages for work did not relate to them as they were transfers from other accounts and deposits of cash. In the result, they remain as unexplained payments received by Mr Ross and the mere fact that the author of MFI-1 has asserted that the amount was assessable is not evidence of its origin or whether it is correctly so identified.
153 MFI-1 also identifies approximately 16 deposits into Mr Ross's ANZ account ending in "7317" in the period from July 2013 to June 2014 totalling just over $66,000. No explanation is given in MFI-1 for these payments and no reference is given to any evidence by Mr or Mrs Ross as to their source. That said, the amounts are identified in MFI-1 as being "Assessable" and, in his evidence, Mr Ross claimed they were payments from his concreting work and that his accountant told him to put his wages through the family trust. Despite this being somewhat implausible, it was an explanation for the amount received and may have been capable of discharging the burden of proof in respect of those individual amounts.
154 It is appropriate to now turn to those matters in MFI-1 which relate specifically to Mrs Ross
155 The initial version of MFI-1 also failed to identify trust distributions in the 2014 income year to Mrs Ross despite her having filed a return which identified that she had received $96,702. However, a table in MFI-1, which appears to identify her total assessable income for that income year, states that it was only $7,770.77. That not insignificant error was readdressed to some extent in the Attachment which contained an addendum, apparently made by Counsel, which identified that Mrs Ross's tax returns had identified her distributions from the trust. It seems that, by this alteration, Mrs Ross sought to assert that her assessable income was that identified in the table in MFI-1 plus the amount of the trust distribution.
156 More significant difficulties exist in relation to Mrs Ross's receipt of funds from a family trust as found in MFI-1 and the Attachment. Those documents identify a large number of deposits made into Mrs Ross's account ending in "5175" in the period from August 2013 to June 2014 and which are described as, "Transfer from Shane Ross ANZ Account [ending in "7317"]" and further describe the relevant tax treatment as being "Not Assessable". The documents describes the verifying evidence as being, "Transfer from Shane Ross ANZ [accounting ending in "7317"] as evidenced by page [relevant page varies] of Annexure to Affidavit of Shane Ross sworn 2 November 2017 to this account as evidenced by [relevant page varies] and paragraph 4 of Affidavit of Alexandra Ross sworn 2 November 2017". The basis for the assertion that the payments were not assessable is not given in MFI-1 or the Attachment, although Counsel for Mrs Ross submitted that any such payments would obviously be gifts. There is no basis for that assumption and the payments may well have been income funnelled through Mr Ross or payments made on behalf of others or remuneration of some other description. There is simply no evidence one way or the other.
157 Nevertheless, that issue can be put to one side. The Commissioner observes correctly that the amounts in question were actually transferred from the S Ross Enterprises Pty Ltd as trustee for the S Ross Enterprises Trust and not from Mr Ross. They are, in fact, payments from the accounts of the family trust. By the conclusion of the appeal, Mrs Ross accepted that to be the case, however, she submitted that nothing turns on that because she had lodged a tax return in the 2014 income year acknowledging the receipt of $96,702 as trust distributions. The difficulty with that is that the amount of these incorrectly labelled payments is approximately $143,000 and, as such, does not correspond to the amount declared in Mrs Ross's tax return. The Commissioner also submitted that there is no evidence that the amount of $96,702 acknowledged by Mrs Ross in her 2014 return is included in the payments set out in MFI-1. Mrs Ross submitted that she was not cross-examined about these amounts and it was not suggested to her that the amounts in excess of $96,702 had been distributed to her by the trust. That may be so, but that has the consequence that the nature of the payments, in terms of whether they were assessable or not, remains unexplained. To say, as she did, that funds were transferred from the trust account to top up her account does not identify whether the amounts were assessable or not. On the material before the Tribunal, the receipt of these amounts was not explained or justified by identifiable income.
158 Mrs Ross's submissions complained that there was no cross-examination in relation to this issue, however, that would have been somewhat difficult given that the manner in which the taxpayers sought to characterise these payments was unknown until the production of MFI-1 at the end of the hearing. In any event, the tables which purport to show what Mrs Ross's assessable income was must necessarily be substantially incorrect for this reason alone. It can also be observed that the amounts were identified as being non-assessable and, therefore, not regarded by Mrs Ross as being distributions from the family trust which Mrs Ross, in her 2014 return, accepted were assessable.
159 Another recurring error in MFI-1 relating to Mrs Ross were the not uncommon transfers to her accounts from Paypal. In her evidence, she claimed that money from Paypal was in respect of small sales made by her and those moneys were paid into an account which she held with ING Direct. As the Commissioner submitted, there were several transfers to Mrs Ross's ANZ account from Paypal and these are not explained by that evidence. In the post-appeal submissions, Mrs Ross submitted that her evidence may have been mistaken and an inference should be drawn that the funds were received as a result of sales of Mrs Ross's personal items. It is difficult to see how such an inference can be drawn in the circumstances although the total amount of these errors is not great. Nevertheless, when the errors are considered cumulatively, they severely undermine the veracity of MFI-1.
160 For reasons which are unexplained, MFI-1 (and the Attachment) included amounts received by Mrs Ross which are recorded as refunds from Medicare as being assessable income. Mr Hack QC asserts that these are obvious errors. That may or not be so. Nevertheless, their inclusion in the alleged totals of Mrs Ross's income also has a distorting effect.
161 MFI-1 identifies deposits into Mrs Ross's account ending in "5175" in July 2013 totalling $2,200, one of $2,000 on 30 September 2013, one of $5,000 on 9 October 2013, one of $4,540 on 17 October 2013, one of $5,000 on 2 December 2013, and one of $2,000 on 26 May 2014. Although are described as being supported by Mrs Ross's evidence in paragraph 4 of her affidavit of 2 November 2011, it is clear that evidence does not relate to card entry deposits into this account. That paragraph read:
In the 2013 and 2014 financial years my only sources of income were from Centrelink and from my work as a bookkeeper at Compass Pools. All of that income was deposited directly into my ANZ bank account number ending [in "5175"]. Other deposits include transfers from either mine or Shane's accounts, such as the Sross trust account. We topped up personal accounts from the trust's account when we wanted more money for personal expenditure.
These cash deposits are not transfers from other accounts so as to fall within the scope of Mrs Ross's evidence. They were deposits of cash made at various branches of her bank. Although Mrs Ross submitted that she was not cross-examined on this, she had left the witness box before MFI-1 was given to the Commissioner with the assertion made in it that these irregular deposits were not assessable. In terms of discharging the onus of proof, those assertions were not evidence and, ultimately, the material does not evidence any basis on which to determine whether these funds were assessable or not. Again, the receipt of these amounts which total $20,740 are not explained by Mrs Ross's evidence or MFI-1 and no decision could be made as to whether it was or was not part of her assessable income.
162 The transactions in MFI-1 also include a number of payments which were transfers from Mr Ross's account to Mrs Ross's account in May 2013 totalling $2,510, and are stated to be "Not Assessable". Before this Court, Mrs Ross accepted that the details of the payments as recorded in MFI-1 are incorrect, but submitted that the evidence from the bank statements sufficiently showed that they were transfers from Mr Ross and, therefore, not assessable. Again, if there were evidence that the amounts were gifts or contributions towards household expenses it might be accepted that the amounts were not assessable. However, there is no evidence to that effect and the mere fact that the amount passed through Mr Ross's accounts does not establish it. The amounts remain unexplained.
163 MFI-1 records four amounts, each of $500, as being transferred from Mrs Ross's account ending in "5175" in April, May and August 2013. The evidence shows that the amounts were, in fact, deposits and the Commissioner relied on this as supporting the inadequacy of MFI-1. Mrs Ross submitted that, had the Commissioner made a similar submission at the hearing, the error could have been corrected and "adjustments" could have been made. It is not clear what such adjustments might be. If it is the acceptance that the amounts are not explained, that does not assist Mrs Ross as she will have failed to demonstrate whether these amounts were assessable or not and, hence, will have failed to demonstrate the true amount of her assessable income.
164 MFI-1 also identifies a payment of $1,505.59 into Mrs Ross's account ending in "5175" on 26 October 2012 which is described by the author of MFI-1 to be assessable although there is no evidence as to that matter. The Commissioner correctly identifies that the amount is not explained by the evidence. Although Mrs Ross submitted that MFI-1 identified it as being assessable, that is not evidence of anything and the amount remains unexplained.