1. The Tribunal's power to issue stays is set out in section 32 of the Administrative Review Tribunal Act 2024 (Cth) ("ART Act"). That provision reads as follows:

32 Reviewable decision continues to operate unless Tribunal orders otherwise

(1) The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

Exception - Tribunal may stay operation or implementation

(2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.

(3) The order is subject to any conditions specified in the order.

(4) The order has effect until the decision of the Tribunal on the application for review comes into operation.

(a) the order states that it applies for a period; and

(b) the period ends before the decision of the Tribunal on the application for review comes into operation;

the order has effect until the end of the period.

(6) On application by a party to the proceeding, the Tribunal may, by order, vary or revoke the order.

Preconditions to making, varying or revoking an order

(7) The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless:

(a) the Tribunal has given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and

(b) the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.

(8) However, paragraph (7)(a) does not prevent the Tribunal making, varying or revoking an order without giving a party an opportunity to make a submission to the Tribunal if the Tribunal is satisfied that it is not practicable to give the party the opportunity.

(9) If the Tribunal makes, varies or revokes an order without giving a party an opportunity to make a submission as mentioned in subsection (8), the order, variation or revocation does not take effect until a notice setting out the terms of the order, variation or revocation is given to the party.

1. The general power for the Tribunal to issue a stay is impacted by any specific provisions in other legislation. In the case of taxation proceedings, that general power to issue a stay is subject to provisions in the TAA.
2. That includes subsections 14ZZB(5) and 14ZZB(6) of the TAA which provide:

(5) Section 32 (reviewable decision continues to operate unless Tribunal orders otherwise) of the ART Act does not apply in relation to:

(6) However, despite subsection (5), section 32 (reviewable decision continues to operate unless Tribunal orders otherwise) of the ART Act applies in relation to a reviewable objection decision that relates to a small business taxation assessment decision, subject to the modifications set out in section 14ZZH of this Act.

1. Considering subsection 14ZZB(5), the Tribunal's power to issue a stay under section 32 of the ART Act does not extend to a stay of the reviewable objection decision.[9] Section 14ZZM of the TAA provides that the fact a review is pending of a taxation decision "does not interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending".

Subsection 14ZZB(6) - Small business taxation assessment

1. To be a "small business taxation assessment" in subsection 14ZZB(6) of the TAA, the definition in section 14ZQ of the TAA must be met. To meet that definition there must be an "assessment of tax-related liabilities (as defined in section 255-1 in Schedule 1) relating in whole or in part to carrying on a business" and "made in relation to a small business entity (within the meaning of the Income Tax Assessment Act 1997)." The Commissioner's Submissions are to the effect that there is no small business taxation assessment at issue in this case.[10] The definition of small business entity is in section 328-110 of the Income Tax Assessment Act 1997 (Cth) ("ITAA 1997"). For the sake of brevity in this decision, I operate on the assumption that the Applicant is a small business entity as defined and as maintained by Mr Gray at the interlocutory hearing.
2. Section 255-1 of Schedule 1 to the TAA provides that a 'tax-related liability' "is a pecuniary liability to the Commonwealth arising directly under a taxation law (including a liability for an amount of which is not yet due and payable)". I agree with the Commissioner that there is no assessment of a pecuniary liability that forms the reviewable objection decision in this case. Instead, the reviewable objection decision is concerned with a decision to retain a refund pursuant to paragraph 8AAZLGA(1)(a) of the TAA. That is what the Application for Review is about. The Tribunal's jurisdiction does not extend to matters that are not part of a reviewable decision.[11] Paragraph 8AAZLGA(1)(a) of the TAA is a power that is unconnected to the assessment of a tax liability. It relates to verification of information.
3. The Applicant needed to object to the 10 April 2025 assessment, the reviewable objection decision needed to apply to that objection and the Application for Review to apply to that objection for the power to issue a stay in relation to a "small business taxation assessment" to be enlivened.
4. As was raised with the Applicant at the interlocutory hearing, if the Applicant wishes to challenge the 10 April 2025 assessment before the Tribunal, the Applicant can file an objection to the 10 April 2025 assessment, and seek that it be accepted late by the Commissioner providing the necessary details to the Commissioner.[12] The Commissioner has helpfully set out guidance of the factors it will consider in Practice Statement Law Administration PS LA 2003/7 How to treat a request to lodge a late objection which is available on the Commissioner's website. If the Commissioner does not accept a late objection or disallows that objection to the 10 April 2025 assessment, the Applicant can then proceed to challenge those decisions at the Tribunal if he wishes to do so. The alternative course is for the Applicant to seek that the Tribunal exercises its powers to accept additional grounds of objection in accordance with paragraph 14ZZK(a) of the TAA. If that latter course was adopted, there may be difficulty as the Commissioner's Objection Decision does not clearly cover the 10 April 2025 assessment. Those options are left with the Applicant to consider.
5. I find there is no small business taxation assessment that is the subject of these proceedings, and this is fatal to the Applicant's Application for a Stay.

1. Even if the Applicant met subsection 14ZZB(6) of the TAA (which is not the position), the Tribunal's power to issue a stay is subject to section 14ZZH of the TAA.
2. That provision provides as follows:

14ZZH Limitation on orders staying or affecting reviewable objection decisions relating to small business taxation assessment decisions

(a) a party to a proceeding for review of a reviewable objection decision that relates to a small business taxation assessment decision applies for:

(i) an order staying or otherwise affecting the operation or implementation of the decision; or

(ii) an order varying or revoking such an order; and

(b) the party requesting the order is not the Commissioner of Taxation.

(2) Despite the ART Act, the ART must not make the order unless the party satisfies the ART that, when considered in the context of both the particular circumstances of the decision under review and the overall taxation system, the application for review and the request for making the order are not frivolous, vexatious, misconceived, lacking in substance or otherwise intended to unduly impede, prejudice or restrict the proper administration or operation of a taxation law.

Note 1: The kind of orders that the ART may make include the following:

(a) an order directing the Commissioner not to sue in a court to recover a specified amount relating to the reviewable objection decision (see subsection 255‑5(2) of Schedule 1 to this Act);

(b) an order directing the Commissioner to offer or accept payment of a liability relating to the reviewable objection decision by instalments under a specified arrangement (see section 255‑15 of Schedule 1 to this Act);

(c) an order directing the Commissioner not to issue one or more written notices to specified third parties who owe or may later owe money to the applicant as a means of recovering a liability relating to the reviewable objection decision (see section 260‑5 of Schedule 1 to this Act).

Note 2: However, an order that would materially and permanently alter the decision under review would not be an order staying or otherwise affecting the operation or implementation of such a decision for the purpose of securing the effectiveness of the hearing and determination of the application for review. For example:

(a) an order the Commissioner to defer the time at which a tax liability becomes due and payable; or

(b) an order directing the Commissioner to remit the imposition of interest charges on unpaid liabilities that are due and payable.

1. As the Commissioner's Objection Decision is about section 8AAZLGA, any stay in relation to that particular decision[13] can logically only materially alter that decision. The Tribunal's stay power does not enable it to do this, and section 14ZZH of the TAA confirms that. I further find that section 14ZZH would prevent the Tribunal from issuing a stay.

1. The Application for a Stay is dismissed. The Tribunal has no power to issue the stay sought by the Applicant.

........................[SGD]..................................

[4] There is a suggestion that a fully signed copy of the Applicant's Objection was not received until 24 May 2025 -T9, T2-19, T2-20 [2]. There is also an objection dated 7 September 2024 (T7-81), but this is to the failure to add Mr Gray as the Applicant's representative, so it is not considered further.

[7] Sections 11 and 12 of the Administrative Review Tribunal Act 2024 (Cth), section 14ZZA of the TAA.

[9] Confirmed in Iyengar and Commissioner of Taxation [2015] AATA 80; The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682; Coshott and Commissioner of Taxation [2013] AATA 822.

[10] Commissioner's Submissions [3], [11].

[11] Section 11 and section 12 of the Administrative Review Tribunal Act 2024 (Cth).

[12] Subsection 14ZW(2), subsection 14ZW(3) and section 14ZX of the TAA are relevant provisions to consider.

[13] This is considered on the assumption (which is to be tested in a future interlocutory hearing) that the Tribunal has jurisdiction to hear a challenge to that decision.