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[2010] AATA 326
respondent. The application under s 14ZZK(a) of the Taxation Administration Act 1953 is refused; the Tribunal holds it lacks jurisdiction to allow the amendment sought by the taxpayer.
The taxpayer sought permission from the AAT to add grounds to her objection against an earlier amended tax assessment so that those new grounds would attack a later amended assessment the Commissioner issued after the objection decision. The Tribunal held it had no jurisdiction to allow that because the later amended assessment (issued 15 December 2009) was a separate taxation decision that created its own right of objection. Allowing the amendment would bridge a jurisdictional gap and circumvent statutory objection limits (s 14ZV). The application under s 14ZZK(a) was refused.
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1,867 words · generated 17/08/2026
3 cited instruments linked from this judgment.
Core jurisdictional requirement: the Tribunal's jurisdiction to review an "objection decision" depends on the existence of a decision made under s 14ZY(1) of the TAA 1953 that allows or disallows a taxation objection. The AAT's jurisdictional mantle is derived from that statutory decision-making act (Tribunal considers the nature of an "objection decision").
Identification of two separate legal acts in the Notice of Decision: the Tribunal found the Commissioner's notice performed two distinct functions. First, it decided the taxpayer's objection under s 14ZY(1), partially allowing it. Second, the same document also advised the taxpayer that the Commissioner had, by a separate process, made a further/amended assessment that increased the taxpayer's taxable income under Division 6AAA. The Tribunal emphasised that the process of assessment is completed only once the notice of amendment is issued (the Second Amended Assessment issued 15 December 2009). Once that notice issued, a new liability was established and that created an entitlement in the taxpayer to object to that separate amended assessment (Consideration).
Statutory limitation on objection rights: the Tribunal relied on s 14ZV of the TAA 1953 which (as quoted in the decision) limits a person's right to object against an amended assessment "to a right to object against alterations or additions in respect of, or matters relating to, that particular" amended assessment. The later Division 6AAA-based increase was an addition effected by a later amended assessment and therefore, under the statute, is the subject of its own objection rights (Consideration).
Jurisdictional gap and impermissible bridging: because the taxpayer's objection to the Second Amended Assessment had not been determined, the Tribunal held there was a "jurisdictional gap". Allowing the taxpayer to amend the earlier objection to attack the later, distinct assessment would amount to an impermissible bridging of that gap and would circumvent the statutory objection scheme. The Tribunal therefore had no power to grant the s 14ZZK(a) order sought (Consideration, Conclusion).
Reliance on authority: the Tribunal noted prior authorities (Fabry [2003] FCA 1043; Epov [2007] FCAFC 139) disposed of the taxpayer's initial submission that the Commissioner had no power to issue a further amended assessment after the objection decision had been referred to the Tribunal. The decision thus proceeded on the basis the Commissioner was permitted to issue the later amended assessment and that that assessment gave rise to its own objection rights (Parties' contentions and Consideration).
Before: The statutory scheme in the TAA 1953 already distinguished between decisions on objections (s 14ZY(1)) and notices of amended assessments that create or alter tax liabilities. Jurisdiction for the AAT to review an objection decision is available where the Commissioner has made a decision allowing or disallowing an objection. Section 14ZV circumscribes the rights to object in relation to amended assessments.
This decision: Reaffirms that identifying the "objection decision" is pivotal to the Tribunal's jurisdiction; a later amended assessment, even if discussed in the reasons for the earlier objection decision, is a separate taxation decision if and when notice of that later assessment is issued. The later assessment's issuance completes the assessment process and creates a separate right to object which cannot be subsumed into the earlier objection simply by amendment of grounds under s 14ZZK(a).
After: The decision emphasises procedural separateness between objection determinations and subsequent amended assessments. Practically, it signals to taxpayers and practitioners that where a Commissioner alters liability after an objection decision, even if that intended alteration is foreshadowed in the reasons for the earlier decision, the taxpayer will need to follow the separate objection route for the later assessment (including waiting for a decision on that later objection) rather than ask the Tribunal to hear those later issues on the footing of the earlier objection.
Passage (reasoning): "The process of assessment ... was completed once the notice of the Second Amended Assessment was issued to the taxpayer on 15 December 2009." (Consideration).
Plain-English: The new tax bill became legally fixed when the Commissioner formally sent the Second Amended Assessment notice. Only then did the taxpayer get a new legal right to object specifically to that new bill.
Passage (jurisdictional conclusion): "Because the taxpayer's increase in liability did not arise out of a decision by the Commissioner to allow or disallow a taxation objection, it cannot be said that there is an Objection Decision in relation to the Division 6AAA issue. The AAT accordingly is not seized with jurisdiction..." (Parties' contentions / Consideration).
Plain-English: The adjustment under Division 6AAA was not decided under the statutory objection-power that the Tribunal reviews. Therefore the Tribunal cannot treat that adjustment as part of the objection decision it is reviewing, and cannot hear that issue now.
Passage (jurisdictional gap): "There currently exists a jurisdictional gap... It would amount to an impermissible bridging of that jurisdictional gap to allow the taxpayer to include ... a ground on which she wishes to rely in attacking ... an entirely different assessment which was made after her original objection was lodged." (Consideration).
Plain-English: There is a separate unresolved objection for the later bill. Letting the taxpayer fold that unresolved issue into her old objection would improperly short-circuit the required separate objection process.
Situations where: (a) a taxpayer objects to an amended assessment and the Commissioner issues a reasons/decsion under s 14ZY(1) allowing or disallowing that objection; (b) the Commissioner, in or alongside those reasons, notifies a further or different substantive adjustment (for example by relying on a different provision) but the formal notice implementing that further adjustment is only issued later; and (c) the taxpayer seeks to amend the grounds of the original objection to include arguments directed at the later, separately-notified amended assessment.
In short: where the Commissioner completes a new amended assessment after an objection decision has issued and the taxpayer seeks to shoehorn an objection to that later assessment into the earlier objection, this decision instructs that the AAT lacks jurisdiction to allow such an amendment.
The Tribunal expressly relied upon, and situated its reasoning alongside, prior Federal Court authority (Fabry [2003]) and Full Court authority (Epov [2007]) which had already addressed related submissions about the Commissioner's power to amend after an objection referral. The AAT treated those authorities as disposing of the taxpayer's submission that the Commissioner lacked power to issue the later amendment once the objection decision had been referred to the Tribunal. The decision accordingly follows existing High Court/Federal Court lines on the separateness of assessment completion and objection decision review.
The reasons also place the decision within pre-existing principles about what constitutes an objection decision and the scope of tribunal review, citing CTC Resources and ANZ Savings Bank as authorities that support the proposition that when a person is "dissatisfied" with an objection decision and brings it to review, the Tribunal is "seized" of that decision in its entirety; but the AAT read that seizure narrowly and would not permit it to encompass a distinct later assessment-notice that created a fresh objection right.
The decision leaves for practical consideration how best to document and communicate where an objection decision simultaneously contains an explanation referencing a contemplated further amendment that will be completed by a later notice. The Commissioner conceded that the Division 6AAA issue should have been made plainly separate in the reasons (for example by separate reasons for decision). That concession suggests scope for procedural improvements but does not change the legal outcome.
The decision notes the taxpayer may require the Commissioner to make a decision on the later objection under s 14ZYA; it does not explore the tactical or practical implications of that route for timeliness or costs. How courts or the Tribunal will treat borderline cases in which the later assessment notice is issued very shortly after the objection decision, or where the reasons plainly contemplate the later assessment and the taxpayer treats that reasoning as a present decision, could require future clarification.
The decision assumes that s 14ZV's limitation on objection rights prevents aggregation of distinct amendments into a single objection. Whether there are fact patterns in which an instrument or Commissioner conduct could be interpreted as simultaneously constituting both an objection decision and a completed assessment (thus collapsing the two steps) is not explored in depth here and may be a locus of future litigation.
Disclaimer: This is a factual and legal-information analysis of the reasons in YWXJ v Commissioner of Taxation [2010] AATA 326, grounded in the decision text provided. It is not legal advice, I can make mistakes, and before you act on, rely on, or use any draft or analysis here, get a qualified Australian lawyer to check it.
DECISION AND REASONS FOR DECISION [2010] AATA 326
The application under s 14ZZK(a) of the TAA 1953 is refused.
....................[sgd]..........................
TAXATION - income tax - application to amend grounds of objection - two amended assessments made at different points in time - objection made against first amended assessment - objection allowed in part - increase in taxable income, on new grounds, notified to taxpayer in the "objection decision" - whether notification of the increase in taxable forms part of the "objection decision" - application refused
Income Tax Assessment Act 1936 - s 6(1) - "assessment"
Fabry v Commissioner of Taxation [2003] FCA 1043; (2003) 132 FCR 239
Epov v Commissioner of Taxation (2007) [2007] FCAFC 139; 244 ALR 334
CTC Resources NL v Commissioner of Taxation [1994] FCA 947; (1994) 48 FCR 397
Commissioner of Taxation v ANZ Savings Bank Limited [1994] HCA 58; (1994) 181 CLR 466
Lighthouse Philatelics Pty Ltd v Federal Commissioner of Taxation (1991) 32 FCR 148; 91 ATC 4942
[16] An Objection Decision draws its identity from having, in accordance with the obligation conferred on the Commissioner by s 14ZY(1) [of the Taxation Administration Act 1953 (TAA 1953)], either allowed or disallowed a taxation objection lodged under s 14ZU of the TAA 1953.
[17] In including the Division 6AAA issue in the Objection Decision in this case the Commissioner concedes he ought to have made it plain that the issue was not part of the Objection Decision itself, for example by setting out the issue in a separate reasons for decision document. However, the fact that the Division 6AAA issue was included in the Commissioner's Objection Decision ought to not distract from the fact that the Commissioner's decision to vary [the taxpayer's] liability by way of increase did not involve an exercise of power under s 14ZY(1) of the TAA 1953 to allow or disallow a taxation objection.
[18] Because [the taxpayer's] increase in liability did not arise out of a decision by the Commissioner to allow or disallow a taxation objection, it cannot be said that there is an Objection Decision in relation to the Division 6AAA issue. The AAT accordingly is not seized with jurisdiction because the jurisdictional fact found in s 14ZZ of the TAA 1953 is not present.
[19] The proper course is for [the taxpayer], as she has done, to object to the Notice of Amended Assessment issued by the Commissioner on 15 December 2009. By virtue of s 14ZV of the TAA 1953, her rights of objection are limited to the Division 6AAA issue.
If the taxation objection is made against a taxation decision, being an assessment ... that has been amended in any particular, then a person's right to object against the amended assessment ... is limited to a right to object against alterations or additions in respect of, or matters relating to, that particular.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member
Signed: .....................................................................................
Solicitor for the Applicant Ms M Waites, Argyle Lawyers
Fabry
Commissioner of Taxation
(2003) 132 FCR 239
(1994) 48 FCR 397
(1994) 181 CLR 466
(1991) 32 FCR 148
(2007) 244 ALR 334
The application under s 14ZZK(a) of the Taxation Administration Act 1953 is refused; the Tribunal holds it lacks jurisdiction to allow the amendment sought by the taxpayer.