1. The circumstances attendant to the delay are relevant. In Brown, this factor is described as overlapping to some degree with the first factor, but it might take into account other features such as a delay in the receipt of correspondence from the Commissioner.[40]
2. In this case, there is an overlap with the first factor. When considering this factor I have taken into account the Applicant's submission about acting promptly upon the participants becoming aware of the issue.[41] Prompt action by a taxpayer to dispute a matter was a factor in the Tribunal finding that an out of time objection should have been accepted as in time in HV/LV Solutions Pty Ltd and Commissioner of Taxation [2025] ARTA 976 at [48] for example.[42] It is noted in PS LA 2003/7 as a factor.[43] The Commissioner disagrees this is a factor in this case, pointing out 9 years of filings by the Applicant that were consistent with its position and that 9 years had passed.[44]
3. I agree with the broad thrust of the Commissioner's submissions. To suggest the Applicant took prompt action is not on the face of the facts correct. The Applicant's Reply Submissions refer to PS LA 2003/7 and suggest that "the taxpayer did not know about and did not receive the taxation decision".[45] This is not so. The Applicant ("the taxpayer") was aware, the participants are asserted not to have been and the cited sentence from PS LA 2003/7 is not relevant to that scenario. At times the Applicant seems to be approaching this matter as if the participants are applicants, when that it is not the case.
4. Because we are talking about a 6 day delay, and taking into account the argued apparent knowledge of the participants which the Applicant says now impact its understanding of what it did, there is an argument in favour of the Applicant. There is a crossover with the first factor, and of course the explanation for lateness need not be compelling given the minimal delay.
5. Overall, I assess this factor from Brown as neutral.

Assessing whether the objection is frivolous or whether it has arguable merits

1. The first issue to consider is the standard to consider when assessing the objection in this context. The case law establishes the hurdle for the Applicant to meet is low. The Applicant's case must be taken at its highest, as must the issue of whether it has arguable merit. In Brown[46] Justice Hill described this factor as a low threshold, and said what is to be determined by the Tribunal is whether the objection is frivolous, must fail or is one in which the taxpayer has no arguable case.
2. In Commissioner of Taxation v Brown [1999] FCA 1198 the Full Federal Court confirmed on appeal that when assessing whether the objection is arguable or frivolous, in the absence of agreement between the parties,[47] the Tribunal is not entitled to base its assessment on a view of the credibility of witness evidence. Hill J in Brown suggested it would seldom, if ever, be necessary to assess credibility.[48] The Full Federal Court held at [20], [23] and [28]:

[20] In our opinion, the difficulty with the Commissioner's case is that it confuses the formidable evidentiary obstacles the taxpayer undoubtedly faces in ultimately establishing his claim, with the question of whether he has shown an arguable case on the merits. If the taxpayer's case is to be taken at its highest (as Mr Bevan conceded), in our view he has shown enough to establish an arguable case. Indeed, it was for this very reason that the AAT found it necessary, in order to support the conclusion that there was no arguable case on the merits, to reject the evidence of the taxpayer as untruthful.

[23] This is not a case where the taxpayer's own evidence demonstrates a fatal flaw in his or her claim. Nor is it a case where there is other evidence, not dependent upon an assessment of a witness's credit, which demonstrates such a flaw. These are the kinds of cases von Doussa J had in mind in Windshuttle when he spoke of "an obvious and easily demonstrated flaw in the applicant's case". Rather, it is a case where the taxpayer advances an account which seems improbable (perhaps highly improbable) but, if accepted, would establish an arguable case on the merits.

[28] We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer's case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration. In the present case, for example, while the AAT should not have resolved the application by rejecting the taxpayer's evidence as unworthy of belief, it could have taken into account the obvious difficulties confronting the taxpayer's claim when deciding whether, in the light of all the circumstances, an extension of time was appropriate. (emphasis added)

1. In Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553, at [26] when considering how to assess whether the objection is frivolous, the Court held:

It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. ... On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. ... It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant's case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time. (emphasis added)

1. In Re Esso Australia Resources Pty Ltd v Commissioner of Taxation [2007] AATA 1776 ("Esso") the Tribunal found the objection was "tenuous ... at best"[49] and while not "unarguable", was "extremely weak"[50] and held that the objection would not be accepted as in time. In that case extensions were sought of between 6 months and 14.5 years to file objections claiming certain payments made to a third party company should have been deductible under the petroleum resource rent tax. The Tribunal based its assessment of the merits of the taxpayer's case on the statutory wording at issue, not witness evidence, and did not make its decision not to allow an extension of time based only on its assessment of the merits, but also because of the extensive delay (up to 14.5 years), the lack of explanation of that delay and the size and resources of the taxpayer to seek advice prior to taking the original position.[51]
2. The objection in this case is based on the GST status issue. The Applicant says that it ought not have been registered as a partnership for tax purposes as it was actually a fixed trust ("the professed Trust").[52] The Applicant says:

(a) Mr P and/or nominee signed contracts to purchase properties in Victoria ("Properties") on 7 August 2014.[53] > > (b) The professed Trust was established on 14 October 2014 and Mr P nominated the trustee of the professed Trust as transferee to complete the purchase of the Properties.[54] > > (c) The Applicant applied for an ABN in the name of the participants on 19 August 2015, obtained a tax file number on 21 October 2015, and registered for GST on a quarterly basis on 16 November 2015.[55] > > (d) Around October 2015, the property development activities on the Properties commenced.[56] > > (e) BAS were filed for periods other than the Relevant Periods without specifying entity type.[57] Income tax returns were filed for periods earlier than the Relevant Periods as a partnership.[58] > > (f) BAS were filed for periods including the Relevant Periods on 7 August 2019 which showed tax to pay totalling approximately $1.7m (in aggregate) in the Relevant Periods. That amount was not paid but a payment plan was entered into between the Applicant and the Commissioner.[59] > > (g) In June and July 2023, statutory demands were issued to the participants in the Applicant.[60] In October 2023 to January 2024 steps were taken to register the trustee of the professed Trust as a fixed trust, a tax file number and ABN were issued, and the professed Trust was registered for GST on a quarterly basis.[61] > > (h) The Applicant says that it was the professed Trust that all of the participants understood was conducting property development, and this is evidenced by the nominee arrangement, the fact that invoices were issued to the trustee of the professed Trust rather than the Applicant and the fact that contracts were entered into by the trustee of the professed Trust. The Applicants also suggested that it had relied upon professional advice and that the Commissioner's acceptance of its filings and self-assessments in the name of the trustee of the professed Trust is also evidence in its favour.[62] > > (i) The Applicant contends that particular clauses in what it calls a "Trust Deed," but which is entitled "Joint Venture Agreement"[63] ("Agreement") support its position.[64] In particular, the Applicant points to clause 10.1 which says the participants and parties to that Agreement are not partners and clause 11.3 which also provides that the Custodian (as defined, which the Applicants say is the trustee of the professed Trust) is not in partnership with the participants. This means a partnership cannot be the correct position. The Applicant also points to various subclauses in clause 11 which establish the Custodian as evidence of the professed Trust relationship. For example, the Applicant points to clause 11.1(a) which provides that the Custodian holds the legal title to the Properties for the participants "as custodian and trustee". The Applicant disputes that this is as "bare trustee" as was suggested by the Commissioner at the hearing but says the Tribunal need not determine this in any event for present purposes.[65]

3. The Commissioner disagrees with the Applicant and maintains the Applicant has no genuinely arguable case. The Commissioner describes the Applicant's case as "speculative and self-serving".[66] In particular, the Commissioner says:

(a) The Applicant's use of trust terminology and reliance on particular clauses obscures the reality of the Agreement as a whole. The Agreement does not establish a trust relationship but a joint venture relationship.[67] > > (b) The Applicant's witness evidence is wanting. There is no evidence from the relevant tax agents, no evidence of the advice relied upon that the Applicant now says is wrong and only some of the participants have provided witness statements, the majority of which is from former participants and not relevant as a result.[68] The Commissioner also claims that certain witness statements are "fanciful and self-serving".[69] The Commissioner says it is not suggesting that the Tribunal undertake an assessment of credibility of the witnesses but rather consider the probative value of that witness evidence.[70] The Commissioner submitted that a witness that has an interest in the proceedings that turns on that witness evidence must be approached with caution.[71] I agree with the Commissioner that the witness statements I have seen are not entirely convincing for the Applicant's overall case, but in considering the issue before me I am to take these statements and all other evidence at its highest. In the circumstances of this case, my view is that I cannot assess the real value of the witness evidence before the Tribunal overall without assessing credibility. It is not for the Tribunal to draw conclusions about credibility in respect of witnesses that do not appear before it. > > (c) The entity type that the ABN was issued for was a partnership and this can be seen on the publicly available ABN Lookup.[72] So it is not correct to say that the entity type was not specified by the Applicant. > > (d) It is not correct to suggest the Commissioner contributed in any way to the Applicant's purported misunderstanding. The self-assessment regime places the obligation on the taxpayer to get its filings correct. It is not correct that the Commissioner recognised the existence of the professed Trust at any time.[73] I accept this submission. I found the Applicant's submissions on this point entirely unconvincing. > > (e) The trustee of the professed Trust also did not exist at the time the Commissioner undertook GST reviews and nor could it have filed the BAS as it was registered long after the Relevant Periods.[74] This undermines the Applicant's case. > > (f) A discretionary, fixed unit trust or unit trust must be stamped by the Victorian State Revenue Office within 30 days of the execution of the Deed. This did not occur.[75] > > (g) The Applicant distributed tax losses in its income tax returns, and this is not possible if the Applicant was the professed Trust.[76] > > (h) The Applicant is only disputing the Relevant Periods where there was GST to pay, and is not disputing periods where GST credits (of over $845,000) arose. All periods should have been objected to if the GST status issue was a genuine issue.[77] The Commissioner's view is that this matter is really about the statutory demands and the participants seeking to avoid those demands.[78] > > (i) Some of the participants or former participants filed "set aside proceedings" in a Victorian State Court in relation to the statutory demands. Those proceedings were dismissed. The Commissioner refers to the decision of the Victorian State Court which in part focused on the strength of the Applicant's case on objection, holding it was not a genuine dispute.[79] As the Commissioner noted, this related to section 459H of the Corporations Act 2001 (Cth) but the Commissioner said the reasoning from the Victorian State Court in the passage it cited in the Commissioner's SFIC is relevant to determining whether the objection has arguable merits or is frivolous under section 14ZX of the TAA.[80] The test of "genuine dispute" in the Corporations Act context is whether there is a "serious question to be tried"[81] which is completely different to the low bar of the test in this case. In my view, while relevant, the passage cited does not assist me to determine whether taken at its highest the Applicant's case has arguable merits nor to balance the other factors in Brown. What the cited passage does is draw to the attention of the Applicant to the considerable hurdles it will have in meeting its burden of proof in this case.

4. The Tribunal's role when determining the issue in this case is not to decide the objection. I have considered all of the above submissions and the material on the file. Having reviewed that material, the Applicant's case does not seem particularly convincing. The Commissioner's arguments have strength. The Applicant has significant hurdles both legally and evidentially. There are issues that the Applicant faces about the purpose of this objection and the Commissioner's criticisms of the scope of the objection and scope of the evidence have some basis. The Applicant has the burden of proof. The Tribunal is aware of these issues.
5. None of that is the test. The Tribunal is not determining the objection. The issue is whether taking the Applicant's case at its highest, the low bar of "having arguable merits" or "not being frivolous" can be said to have been met by the Applicant's case. As is cited above, in Commissioner of Taxation v Brown [1999] FCA 1198 even a highly improbable case or one with formidable evidentiary obstacles was described by the Full Court to potentially meet this test. Unless an objection is accepted as in time, the taxpayer has no right to dispute the Commissioner's assessments. That is why the threshold to meet this test is low. The interests of justice are important.
6. I find, on balance, that the Applicant has met this test. It is not a high threshold. It can be said there is some evidence of the professed Trust (for instance receipts, and some limited clauses in the Agreement that could be argued about), and some witness evidence in support which can be assessed by the Commissioner. Further evidence may be provided by the Applicant in the objection process, and the Applicant knows it has the burden of proof. Although the material for the Applicant that is before the Tribunal seems to be uncompelling, that is not for me to determine in this case.
7. From the material before the Tribunal, I consider the Applicant's case difficult, even improbable, but, taken at its highest, if established, it is arguable. It is not frivolous, fanciful and nor can it be said (per Brown) that it "must fail". For that reason, and after careful consideration given the strong arguments from the Commissioner (which were well put by Mr McKillop), this aspect is narrowly in favour of the Applicant and in favour of the objection being accepted as in time.
8. I comment that when considering this factor, as is noted in Brown, this factor cannot be divorced from the other matters considered in Brown. In particular, it cannot be ignored that we are talking about an objection that is late by 6 days. The decision in Esso (where the delay was up to 14.5 years) can be distinguished on this basis alone. The Commissioner needs to approach each factor in Brown taking into account the overall factual context and all of the factors in Brown.

1. There is clear prejudice to the Applicant that needs to be considered. That is, that absent the objection being accepted as in time, the Applicant cannot proceed to challenge the BAS for the Relevant Periods.
2. The Commissioner also says it is prejudiced and this must be considered by the Tribunal.
3. The first way the Commissioner says it is prejudiced related to the statutory time bar. The Commissioner says that treating the objection as within time "would result in the Commissioner suffering prejudice and otherwise prevents the Commissioner from conducting its operations fairly and efficiently".[82] This is because "the Commissioner does not have the power to amend the GST assessments that resulted in a credit to the Applicant, filed more than 4-years prior to this proceeding, pursuant to s 155-35 of Schedule 1 to the TAA".[83] Further, but on the same exact point in substance, as the trustee of the professed Trust's GST registration can only be backdated 4 years pursuant to subsection 25-10(1A) of A New Tax System (Goods and Services Tax) Act 1999 (Cth), the Commissioner would not be entitled to adjust earlier returns to align with the trustee status.[84]
4. The Tribunal had an exchange with the Commissioner at the hearing about this rationale. The Tribunal specifically asked the Commissioner whether it was claiming that the Applicant manipulated the objection process to delay it in order to ensure that some periods were time barred before filing its objection. Mr McKillop did not take that position. Instead, he said the Commissioner's submission was that the time bar was, of itself, prejudice in this case. The Tribunal requested further submissions on this point. These were duly provided in the Commissioner's Closing Submissions, and the Applicant's Closing Submissions also touch on this issue.
5. The Tribunal notes that the Commissioner's SFIC submissions cited above in paragraph ‎49 mirrors wording in PS LA 2003/7, and notes that:

(a) In paragraph 4 of PS LA 2003/7 the Commissioner refers to a circumstance when the time bar will be a reason to decline an extension of time as including "whether the delay is explained, in whole or in part, by an intent to allow a period of review of the correct taxpayer and the correct tax period, as contended in the objection, to expire". > > (b) In terms of prejudice and the Commissioner's operations, paragraph 4 of PS LA 2003/7 says a factor to consider is "whether the Commissioner's consideration of the objection is prejudiced by reason of the delay, including - where material documents have been lost, destroyed or are no longer available; - where witnesses have disappeared or their recollections have faded, and - where avenues of useful enquiry have dried up or have become difficult to pursue". It does not mention the statutory time bar in that context.

6. The Commissioner's SFIC does not refer to these matters from PS LA 2003/7, which, in the Tribunal's view are correct. Instead, the Commissioner is approaching matters on a general basis. Certainly, PS LA 2003/7 is not restricted in the factors that the Commissioner may take into account but in the Tribunal's view the Commissioner in this case may not have taken into account specific guidance on the very topic it is focusing upon. Of course, PS LA 2003/7 is not law.
7. The Commissioner relied upon the following decisions in support of its position:

(a) DTMP v Federal Commissioner of Taxation [2016] AATA 684 ("DTMP").[85] This case considered whether expanded grounds of objection should be allowed. Senior Member O'Loughlin held at [23] to [24] that the Commissioner's inability to assess another taxpayer by reason of time limitations was material prejudice. The Commissioner says this case is materially similar to the present case and should be applied.[86] The Applicant disagreed pointing out (amongst other matters) that the taxpayer in DTMP gave no explanation for the delay in raising the expanded grounds of objection which is unlike the circumstances in the present case.[87] The Applicant also submitted that the holdings in Brown require a balancing of all factors, and DTMP did not do that as it was a decision relating to an entirely different context.[88] The Applicant also said that unlike DTMP where the taxpayer continued to have rights to challenge the Commissioner, the Applicant "faces complete denial of merits review without the extension of time".[89] > > (b) Trustee for the Whitby Trust v Federal Commissioner of Taxation [2019] AATA 5637 ("Whitby Trust"). This case also considered issues about expanded grounds of objection. Deputy President O'Loughlin QC held at [155] to [156] that the Commissioner's inability to amend an assessment to take into account a fresh ground of objection in relation to another assessment was a relevant prejudice. Those comments were obiter, as the taxpayer took the view it did not need to apply for expanded grounds of objection, and the Tribunal could step into the Commissioner's shoes and determine the matter at issue taking into account any matter it wishes. The Commissioner says that this case tells the Tribunal that DTMP is good law because this judgment was issued after the decision in Primary Health Care Limited v Federal Commissioner of Taxation [2017] AATA 393 and Federal Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131.[90] > > (c) Primary Health Care Limited v Federal Commissioner of Taxation [2017] AATA 393 and Federal Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131 (together "Primary Health Care") are distinguished by the Commissioner. The Tribunal decision in that case held at [72] that delaying lodging the objection to "game the tax system" and to cause the Commissioner to be out of time might be the relevant prejudice. On appeal, the Full Federal Court upheld the Tribunal's conclusions.[91] The Commissioner says this case can be distinguished because of factors that are not applicable to the present case. For example, the Commissioner had contributed to the delay in Primary Health Care by a change of position, while here, the change of position is solely by the Applicant.[92] The Commissioner also submits respectfully that the Tribunal in Primary Health Care was incorrect in concluding that the taxpayer in DTMP had deliberately delayed raising the additional ground of objection,[93] and at most the holding in DTMP was that this was "advantageous". [94]

8. There are other cases which favour the Commissioner's position, and which were not noted by the Commissioner. Each of them involved considerable lateness to the objection (a decade or more) and identify other prejudice to the Commissioner than merely the time bar. For example, WT94/52 and Commissioner of Taxation [1995] AATA 98 at [31] and Esso [57], [70]. They also include cases cited by the Tribunal in DTMP which all involve a lapse of time that is considerably more than the delay in this case_._[95] For those that relate to late objections[96] as opposed to the expansion of grounds of objection,[97] there were also other reasons than the application of the time bar that gave rise to prejudice for the Commissioner.
9. I do not accept the Commissioner's submissions as to prejudice arising from the application of the time bar in this case. The delay of 6 days to the objection has not led to the result the Commissioner complains of. The operation of the law has. I also do not agree that the mere fact the time bar applies to other periods is sufficient to be prejudice to the Commissioner in the sense from Brown. This is simply the application of the statutory provisions. While it would be useful to the Commissioner to have an unlimited timeframe on every occasion to amend tax returns, that is not the law. The fact that is not the law is not prejudice. It is just what the law is. If a taxpayer manipulates the timing of the objection in circumstances that in some way puts the Commissioner in a time-barred position, that is prejudice, but Mr McKillop did not claim this occurred here. What the Commissioner is saying is that the law is prejudice to it as a general matter. I do not accept that.
10. When considering prejudice in the Brown context, the cases do not support Commissioner's position. The cases broadly focus upon whether the effluxion of time since the objection should have been filed means the Commissioner is in a position where it cannot sensibly process the objection - such as missing evidence, memory issues for witnesses, and administrative difficulties (such as returns no longer being available in the Commissioner's records). The focus is on the objection and the impact on the Commissioner. Cases that support that view include Brown itself;[98] Herbert and Commissioner of Taxation [2013] AATA 42 at [15] (prejudice because the 22 year delay meant return material was unavailable to the Commissioner); Re Taxation Appeals [1993] AATA 88 at [17] (prejudice in an inability to collect the tax due because of the delay); WT94/52 and Commissioner of Taxation [1995] AATA 98 [29] to [30] (prejudice due to evidentiary difficulties resulting from the 10 year effluxion of time); Clark and Commissioner of Taxation [2021] AATA 2446 [33] (inability for the Commissioner to obtain evidence because of the delay); and Re Taxation Appeals [1994] AATA 121 [24] to [25] (evidentiary difficulties for the Commissioner because of the delay, prejudice to settlement processes).
11. In terms of DTMP, while I agree that it is a relevant case to consider, I do not accept it is applicable in this context for the following reasons:

(a) I agree with the Applicant that Brown requires a number of factors to be balanced by the Tribunal, and DTMP did not require that because DTMP was about the expansion of grounds of objection. > > (b) Brown notes that (at [59]) "In this balancing process the Commissioner or the Tribunal on a review will be guided by what the justice of the case requires. The balancing process should be approached on the basis that while Parliament has stipulated a time in which objections are required to be lodged it has entrusted to the Commissioner a power to extend that time in appropriate circumstances. The decision maker should not lose sight of the fact that s 14ZW is an ameliorating provision designed to avoid injustice". The interests of justice are relevant in this context and were not in DTMP because (as the Applicant notes) the Applicant's case would be effectively at an end, unlike the taxpayer in DTMP. > > (c) In DTMP the relevant objection was filed on 12 July 2012, the Commissioner determined that objection in November 2012, and, following a change in tax agent, nearly 3 years later, the expansion of objection grounds request was made on 18 March 2015.[99] In March 2015 the time bar was applicable to the Commissioner. There was no explanation for the delay by the taxpayer's former tax agent in raising the grounds of objection in DTMP.[100] In the current case, we have an objection that is 6 days late. There is no suggestion, inferentially or otherwise, that the passing of 6 days was linked to the time bar in any way. An explanation was given for the delay. I do not accept that DTMP is to the effect that the application of the time bar, unlinked in any way to the delay in the objection, is relevant prejudice to the Commissioner.

12. I do not accept that the Tribunal in Primary Health Care was incorrect in its position on DTMP. In DTMP the inference was that the expanded grounds of objection being sought in March 2015 and the time bar applying in March 2015 was not a coincidence. The comments in DTMP at [24] "The Applicant has allowed the Commissioner to proceed in the belief that the grounds sought were not to be agitated and the Commissioner is now prevented from taking the steps required to assess another taxpayer for the income the Applicant now says belongs to someone else" confirms that inference. The comments in [17] of DTMP about the timing of the expansion of grounds being "quite advantageous" to the Applicant also support that inference. I do not think that the Tribunal decision in Primary Health Care overrides DTMP[101] and my view is that it explains the context of DTMP.
13. I do not accept that obiter comments in Whitby Trust and the comments in DTMP adversely impact the holdings by the Tribunal or the Full Federal Court in Primary Health Care. While of course the facts in Primary Health Care are different to the current case, I do not conclude that the comments made in Primary Health Care can be disregarded in this case. The other cases I cited above all involved considerable lateness to the objection and other issues. That distinguishes them from the present matter.
14. The second way the Commissioner says it is prejudiced related to the evidence.[102] The Commissioner says there is a lack of evidence that supports the Applicant's view of the GST status issue, and there is no evidence from the tax agents or all the participants. The Commissioner comments that the Applicant suggests all relevant materials are before the Tribunal or have been produced to the Commissioner. This is not prejudice to the Commissioner. The onus of proof is on the Applicant. If the Applicant does not meet the onus of proof as a result of these evidential matters, that would confirm the Commissioner's position.
15. I have concluded that the substantive prejudice in this case is to the Applicant and this factor favours the objection being accepted as in time.

1. I comment that the Commissioner should not lose sight of the interest of justice in such a matter. I recognise the strength of the Commissioner's concerns about the Applicant's case. But to take a case that a 6 day delay should result in the Applicant having no rights to pursue its argument (that argument being assessed at its highest) is, in my view, not a sensible balancing of the purpose of the statutory provisions which allow for extensions of time, nor of the factors in Brown. This factor is in favour of the Applicant.
2. I note that Practice Statement Law Administration PS LA 2011/4 Collection and recovery of disputed debts provides the Commissioner's officials with guidance about the collection of disputed debt. I note this guidance includes a risk assessment process which states that in certain circumstances the Commissioner is not prevented from collection of amounts in dispute nor from obtaining security for such amounts even where an objection or Part IVC proceeding is underway.

1. I have concluded that on balance the factors favour the objection being accepted as in time. For that reason, the decision under review should be set aside, and the Applicant's objection dated 16 August 2023 should be taken to have been lodged with the Commissioner within the period required by section 14ZW of the TAA.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the written reasons for the decision of General Member J. Dunne

[2] The Applicant is comprised of N Ltd B Ltd and K and M (K and M acting in their capacity as trustees). S Ltd was formerly a participant in the Applicant as was G Ltd. Where necessary I will refer to those entities comprising the Applicant by those references in these reasons for decision.

[6] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 proceedings that were not finalised before 14 October 2024 are continued and finalised by the Administrative Review Tribunal. Anything done in relation to any such proceeding before 14 October 2024 is taken to have been done by the Administrative Review Tribunal.

[11] Such as the Applicant's Reply Submissions dated 1 May 2025 ("Applicant's Reply") [1] and the Respondent's Statement of Facts, Issues and Contentions dated 24 January 2025 ("Commissioner's SFIC") [29].

[16] Commissioner's SFIC [67] and following.

[25] Applicant's Reply Submissions [3].

[26] The Commissioner's unsuccessful appeal to the Full Federal Court in Commissioner of Taxation v Brown [1999] FCA 1198 did not challenge this aspect of Hill J's judgment.

[27] Clark and Commissioner of Taxation [2021] AATA 2446 [30]. This is also noted in PS LA 2003/7 at [4].

[28] Brown v Commissioner of Taxation [1999] FCA 563 [49].

[30] Applicant's SFIC [61]. Applicant's Reply Submissions [11].

[33] Commissioner's SFIC [33], [66], [76].

[34] Commissioner's SFIC [66]. This point was a matter that was considered when weighing up all of the factors in Re Esso Australia Resources Pty Ltd v Commissioner of Taxation [2007] AATA 1776, as is discussed below. Again, this was not the sole basis for the decision in that case, which again involved an objection that was delayed by years and not days.

[35] Case 8/93 [1993] AATA 88 [19].

[37] Applicant's Reply Submissions [15].

[38] T14 suggests that the tax agent had been instructed by the participants in relation to the partnership tax file number. The Applicant's case seems to be that this is not the position: Applicant's SFIC [7], [9], [17], [18], [58], [59]. Applicant's Reply Submissions [11].

[40] Brown v Commissioner of Taxation [1999] FCA 563 [46] to [49].

[41] Applicant's SFIC [29], [30], [62]. Applicant's Reply Submissions [14].

[42] Efforts to dispute the matter on a prior occasion was also considered relevant in De Simone and Commissioner of Taxation [2012] AATA 654.

[43] PS LA 2003/7 [5.7] - this example focuses on a "strong case".

[45] Applicant's Reply Submissions [15].

[47] There is no such agreement here - the Applicant's Closing Submissions [18] to [20] take the view that assessment of credibility of the Applicant's witnesses is not for the Tribunal in the current proceedings.

[49] Re Esso Australia Resources Pty Ltd v Commissioner of Taxation [2007] AATA 1776 [77].

[52] Applicant's SFIC [6]. Applicant's Reply Submissions [19].

[62] Applicant's SFIC [58], [59], [64]. Applicant's Reply Submissions [13], [20b].

[65] Applicant's Closing Submissions dated 10 June 2025 ("Applicant's Closing Submissions") [21]-[26].

[67] Commissioner's SFIC [68] to [71], [73]. The Commissioner also suggested in the Commissioner's SFIC at [11] that the registration for GST purposes as a partnership was because registration as a joint venture requires each participant to be GST registered. The Applicant's Reply Submissions at [4] dispute that as being the reason for the GST registration being as a partnership. The Tribunal does not need to determine this matter.

[68] Commissioner's SFIC [62], [64]. Commissioner's Closing Submissions dated 30 May 2025 ("Commissioner's Closing Submissions") [17a], [17b].

[70] Commissioner's Closing Submissions [23] to [24].

[71] Commissioner's Closing Submissions [25]; Commissioner's SFIC [41].

[73] Commissioner's SFIC [65b], [65c], [65d],[65e]. Commissioner's Closing Submissions [12a], [12b].

[74] Commissioner's SFIC [33b], [65b].

[77] Commissioner's SFIC [76]. Commissioner's Closing Submissions [12d], [17c].

[79] Commissioner's SFIC [78] to [79].

[81] Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669, 671; Scanhill Pty Ltd v Century 21 Australasia Pty Ltd [1993] FCA 618; (1994) 12 ACLC 111,113; Classic Ceramic Importers v Ceramica Antiga SA (1994) 12 ACLC 334, 339.

[86] Commissioner's Closing Submissions [17].

[87] Applicant's Closing Submissions [6].

[88] Applicant's Closing Submissions [14].

[89] Applicant's Closing Submissions [13].

[90] Commissioner's Closing Submissions [16].

[91] Federal Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131 [23].

[92] Commissioner's Closing Submissions [12].

[93] Primary Health Care Limited v Federal Commissioner of Taxation [2017] AATA 39, [72].

[94] Commissioner's Closing Submissions [21] to [22].

[95]; AAT Case 4782 [1988] AATA 345; (1988) 20 ATR 3064; AAT Case 7512/13 (1991) 22 ATR 3526; AAT Case 7510 (1991) 22 ATR 352; AAT Case 8601 [1993] AATA 88; (1993) 25 ATR 1076.

[96] AAT Case 7510 (1991) 22 ATR 352.

[97] AAT Case 4782 [1988] AATA 345; (1988) 20 ATR 3064 (the explanation for the delay was not accepted); AAT Case 7512/13 (1991) 22 ATR 3526 (there was a Court decision fatal to the merits of the taxpayer's claim); AAT Case 8601 [1993] AATA 88; (1993) 25 ATR 1076 (explanation for the two and a half year delay not accepted; prejudice to the Commissioner from inability to collect tax).

[101] Commissioner's Closing Submissions [7].