SOCIAL SECURITY - family tax benefit - garnishment of tax refund to repay debts - decision made by Commissioner of Taxation - legislation does not authorise Tribunal at first review to review such decisions - possibility of applying to Tribunal's Taxation Jurisdictional Area - application dismissed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 161(1B) of the A New Tax System (Family Assistance) (Administration) Act 1999.

1. On 25 November 2024 Ms McPartland lodged an application for first review with the Administrative Review Tribunal (ART) in respect to a decision made to garnish her income tax return to repay family tax benefit debts.
2. On 29 November 2024 Ms McPartland provided a screenshot of a letter dated 17 October 2024 authored by an authorised review officer of Services Australia - Centrelink (Centrelink). It stated that on 6 August 2024 the amounts of $4,553.63 and $107.10 were garnished from her income tax return to repay family tax benefit debts. The letter went on to state that Centrelink did not have legal authority to undertake a formal review of that decision as it was a decision made by the Commissioner of Taxation.

1. The statutory provisions relevant to this review are contained in the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act).
2. The issue which arises in this case is whether the Tribunal has jurisdiction to review the decision to withhold Ms McPartland's income tax refund and apply the refund to her family tax benefit debts.

1. Section 82 of the Act provides for methods of recovery of debts by various means. Paragraph 82(1)(g) of the Act provides that a debt owed by a person is recoverable by the application of an income tax refund owed to the person.
2. Section 87 of the Act states:

(1) If, under section 82, a debt owed by a person is recoverable by the Commonwealth by means of application of an income tax refund payable to the person the Commissioner of Taxation may apply the whole or a part of the refund to the debt.

(2) The amount of the refund and the amount of the debt are reduced accordingly.

1. Section 111 of the Act provides for application for first review at the ART. Subsection 111(1A) of the Act states that application may be made if the decision has been made by:

(a) the Secretary personally; or

(b) another agency head himself or herself in the exercise of a delegated power; or

(c) the Chief Executive Centrelink in the exercise of a delegated power; or

(d) the Chief Executive Medicare in the exercise of a delegated power.

1. Section 3 of the Act contains the following relevant definitions:

(a) the Department; or

(b) the Human Services Department

(a) in the case of the Department - the Secretary; or

(b) in the case of the Human Services Department - the Chief Executive Officer of Services Australia.

officer means an officer of an agency and includes:

(aa) if the agency is the Human Services Department

(i) the Chief Executive Centrelink; and

(ii) the Chief Executive Medicare; and

(b) an employee of the agency; and

(c) any other person engaged by the agency, under contract or otherwise, to exercise powers, or perform duties or functions, of the agency.

1. Section 87 of the Act gives the Commissioner of Taxation power to apply the whole or part of a person's income tax refund to recover a person's family tax benefit debt. The ART first review powers contained in section 111 of the Act do not extend to the ART at first review reviewing decisions made by the Commissioner of Taxation, including a decision to withhold Ms McPartland's income tax refund and to apply that income tax refund towards the recovery of her family tax benefit debts.
2. Therefore, the Act does not bestow jurisdiction of the ART at first review to review the decisions made by the Commissioner of Taxation. In reaching this decision, the Tribunal notes that this decision does not prevent Ms McPartland seeking review of the decision to intercept her income tax refund with the Taxation List in the Taxation and Business Jurisdictional Area of the ART, which can undertake reviews of decisions made under a taxation law or decisions relating to taxation and revenue.[1]

The Tribunal is satisfied that the decision is not reviewable and so dismisses the application for review pursuant to section 97 of the Administrative Review Tribunal Act 2024.

[1] See Administrative Review Tribunal (Allocation of Business to Lists) Direction No.1of 2024.