1. Mr Lee worked as a self-employed sales contractor for A1 Chemicals on a commissions basis from 2006 until 2017.[4] Unfortunately, he neglected to set aside funds during this period for income tax and goods and services tax, failed to return amounts owed and then failed to pay his assessed tax liabilities over a substantial period, causing interest to accrue.
2. Mr Lee has been largely unemployed since 2017. He has tried working for 9 different companies in sales positions but in each case says he was let go for poor sales records arising from his lack of transport and poor health.[5]
3. Mr Lee has more recently suffered a marital breakdown.[6] He also says he has experienced suicidal thoughts.[7]
4. Mr Lee does not dispute that he owes the tax liability to the Commissioner. He also acknowledges he has poor money management skills. He admits he developed an addiction to gambling[8] which did not assist him to pay/repay his tax liabilities. However, he says he does not the capacity to pay the full tax liability in his current circumstances.
5. Relevantly, Mr Lee told the Tribunal that he:[9]

(a) is solely dependent upon his aged pension; > > (b) owns no property or other assets; > > (c) has outstanding credit card debts; and > > (d) has insufficient remaining income post payment of regular expenses and bills to make meaningful repayment of the tax liability.

6. Mr Lee informed the Tribunal that his ongoing tax debts have put him under psychological stress. His pastor told the Tribunal that his need to prioritise repayment of the tax liability means Mr Lee has no money to participate in social activities with his local church.[10]
7. The Commissioner considered Mr Lee's request[11] that he be released from the tax liability. He determined that the GST portion of the debt and associated interest were not eligible for release.[12] He acknowledged Mr Lee's current financial circumstances but ultimately refused to release Mr Lee from repayment of the eligible portion of the tax liability. [13] Mr Lee then lodged a notice objecting to that decision[14] which the Commissioner considered. He ultimately affirmed his original decision not to grant the release.[15]
8. In making the review decision, the Commissioner relied on his policy on debt release which can be found at PS LA 2011/17 - Debt relief, waiver and non-pursuit.
9. The relevant amounts as at the date of the Commissioner's objection decision, including the portions which were ruled ineligible for release are set out below:[16]

Penalty for Failure to lodge Active Statement on time

1. Mr Lee is without legal representation in these proceedings. The Commissioner referred Mr Lee to authorities which suggested the Tribunal does not have authority to order a stay and to explain how interest charges automatically attach to a tax liability.[17]
2. Mr Lee remained resolute in pursuing his stay application. He accepts that part of the tax liability is not eligible for release but submits that if the eligible portion could ultimately be waived, it would make the remainder manageable for him to repay.[18]

1. The primary position is that reviewable decisions which are the subject of an application to this Tribunal, continue to operate while the Tribunal undertakes its review.[19] Section 32(2) Tribunal Act provides an exception to that rule and gives the Tribunal discretion to stay or otherwise affect the operation of the decision if the Tribunal considers that it is desirable to do so for the purposes of ensuring the effectiveness of the review.
2. The operation of s 32 Tribunal Act is modified in many tax cases. The starting position is s 14ZZM Taxation Administration Act 1953 (Cth) (TAA 53) which permits the Commissioner of Taxation to continue recovery of tax liability while a taxpayer seeks review of his objection decision by this Tribunal subject to limited exception for small business taxation assessment decisions:

14ZZM Pending review not to affect implementation of taxation decisions

(1) The fact that a review is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending.

(2) However, the application of subsection (1) in relation to a small business taxation assessment decision is subject to any order made under subsection 32(2) of the ART Act.

Note: An order made under subsection 32(2) of the ART Act is subject to section 14ZZH (limitation on orders staying or affecting reviewable objection decisions relating to small business taxation assessment decisions) of this Act.

1. Sections 14ZZB(5) and (6) TAA 53 provide that s 32 Tribunal Act does not operate in relation to a tax objection decision other than in circumstances where s 14ZZH TAA 53 applies.
2. Section 14ZZH TAA 53 permits the Tribunal to make a stay order in very limited circumstances, namely:[20]
   • - where a reviewable objection decision relates to a small business taxation assessment decision; and
   • - in the circumstances, the Tribunal is satisfied the application for review and the request for the stay 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.
3. The 'circumstances' referred to in the exception to s 14ZZH TAA 53 require the Tribunal to consider both the particular circumstances of the case as well as the overall taxation system.[21] However, these only fall to be considered it the Tribunal is satisfied the reviewable objection decision relates to a small business taxation assessment decision.[22]

1. Section 328-110 Income Tax Assessment Act 1997 (Cth) (ITAA 97) presently provides that an entity will be a small business entity if:
   • it carries on a business in the relevant income year;
   • its aggregated turnover for the relevant tax year was less than $10M; and/or[23]
   • it did not carry on a business for the 2 prior years with an annual aggregated income for each year of $10M or more; and
   • the taxpayer is not making a return as a partner in a partnership.

What is a small business taxation assessment decision?

1. This will depend on the nature of the tax liability incurred by the small business entity. To qualify, s 14ZQ TAA 53 requires that there be:
   • an assessment of tax-related liabilities;[24]
   • 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 (Cth) (ITAA 97).[25]

The review decision is a tax objection decision

1. There is no dispute and I am satisfied the review decision in this case is a 'tax objection decision'.[26]

The tax liability relates to Mr Lee's operation of his small business entity

1. By the time the parties lodged their closing submissions there was no dispute and I am satisfied on the evidence that the original tax liability arose out of Mr Lee's conduct of his unincorporated sales business while working on commission for A1 Chemicals:[27]
   • he was engaged to work on a commissions basis in sales;[28]
   • he used an active ABN and was required to prepare and lodge business activity statements and to set aside money for payment of his income tax;[29] and
   • there is no suggestion he earned more than the relevant statutory threshold amount for the relevant tax periods to which the tax liabilities relate.[30]

The review decision is not a small business taxation assessment decision

1. For the exception in s 14ZZH TAA 53 to apply, the reviewable objection decision must relate to a small business taxation assessment decision. Section 14ZQ TAA 53 defines that term as follows:

small business taxation assessment decision means a taxation decision that is:

(a) an assessment of tax‑related liabilities (as defined in section 255‑1 in Schedule 1)[31] relating in whole or in part to carrying on a business; and

(b) made in relation to a small business entity (within the meaning of the Income Tax Assessment Act 1997).

1. The Commissioner acknowledged that the term 'relating' is one which is capable of broad or narrow application, depending on the context in which it arises in legislation but submitted:
   • there must be a connection to the two subject matters; and
   • the degree of the required connection may differ depending on the subject matter of enquiry and the legislative history of the statutory provision.[32]
2. In the context of s 14ZQ TAA 53, the Commissioner submitted there must be a direct connection between the carrying on of the business with an assessment of tax related liabilities. The Commissioner argues this essential connection does not exist in Mr Lee's case because the review decision concerns Mr Lee's request for the Commissioner to exercise his discretion to discharge his existing tax liability s 340-5 Schedule 1 to TAA 53. This, he says is not an assessment of tax related liabilities. It follows, he says that the exception in s 14ZZB(6) TAA 53 is not engaged.
3. I am forced to agree with that submission. The tax liabilities relating to Mr Lee's activities while engaged as a salesperson for A1 Chemical were previously the subject of assessment notices[33] and it seems that Mr Lee has never disputed those assessments. He has now (many years later) made a separate application asking the Commissioner to exercise his discretion and discharge those tax liabilities. He certainly objected to the Commissioner's decision not to grant the discharge but his notice of objection and the resulting reviewable objection decision which is before the Tribunal concern that request for discharge. They do not relate to an assessment of tax related liabilities.
4. It follows that the review decision does not fall within the exception in s 14ZZB(6) TAA 53. The Commissioner submits and I accept that this means the Tribunal does not have the power to order a stay under s 32 Tribunal Act.[34]
5. Given this finding, I am not required to consider the application of the 'circumstances' in s 14ZZH(2) TAA 53.

[1] As at the date of the Commissioner's objection decision, T2 dated 9 July 2025 (the review decision).

[2] Stay application dated 11 August 2025.

[3] Applicant's submissions in support of stay.

[12] Taxation Administration Act 1953 (Cth) (TAA 53), Schedule 1 s 340-10.

[17] Thompson and Commissioner of Taxation [2019] AATA 4678 [7]; The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682 at [22]; in respect of interest charge see also ITAA 97, s 5-15; Lyengar and Commissioner of Taxation [2015] AATA 80; Coshott and Commissioner of Taxation [2013] AATA 822 as discussed by the Tribunal in Mason [9]-[12].

[22] Where the exception in TAA 53 s 14ZZH(2) TAA 53 is satisfied, TAA 53 s 14ZZB(6) provides that Tribunal Act s 32 shall apply and permits the Tribunal to consider a stay.

[23] Prior to 1 July 2016, the relevant income threshold was $2M.

[25] Income Tax Assessment Act 1997 (Cth) (ITAA 97), s 328-110 defines the term small business entity.

[26] T2 comprises the Commissioner's objection decision (the review decision).

[27] The Commissioner accepts that the relevant period is the income year/s to which the tax liability attaches, SNSV v Commissioner of Taxation (Taxation) [2022] AATA 4047 (29 November 2022) [26].

[28] Applicant's written submissions in reply.

[29] T2 [53] and Applicant's written submissions in reply.

[30] Applicant's written submissions in reply.

[31] TAA 53, s 255-1 defines 'tax related liability' as a pecuniary liability to the Commonwealth arising directly under a *taxation law (including a liability the amount of which is not yet due and payable).

[32] Travelex Ltd v Federal Cmr of Taxation (2010) 241 CLR 510; [2010] HCA 33 (Travelex) [25] per French CJ and Hayne J, withy reference to HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126; (2005) 143 FCR 553 at 563 [35] per Hill J and [90] per Crennan and Bell JJ. The Commissioner also referred the Tribunal to Toohey's Ltd v Cmr of Stamp Duties (NSW) (1961) 105 CLR 603; Hatfield v Health Insurance Commission [1987] FCAR 462.