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[2014] AATA 158
Administrative Appeals Tribunal of Australia
2014-03-21
Original judgment source is linked above.
(1) to vary the Commissioner's objection decision dated 17 July 2012:
(a) in relation to the tax period from 1 July 2009 to 30 September 2009, by increasing the net amount so that the refund payable to RV Investments is reduced from $61,499.00 to $24,513;
(b) in relation to the tax period from 1 October 2009 to 31 December 2009, by decreasing the net amount so that:
(i) an amount of $8,386.00 is no longer payable by RV Investments; and
(ii) a refund of $1,740.00 is payable to RV Investments;
(c) in relation to the tax period from 1 January 2010 to 31 March 2010, by decreasing the net amount so that the amount payable by RV Investments is reduced from $9,164.00 to $2,086.00;
(d) in relation to the tax period from 1 April 2010 to 30 June 2010, by decreasing the net amount so that:
(a) an amount of $13,938.00 is no longer payable by RV Investments; and
(b) a refund of $5,574.00 is payable to RV Investments;
(e) in relation to the tax period from 1 July 2010 to 30 September 2010, by decreasing the net amount so that the amount payable by RV Investments is decreased from $59,767.00 to $3,782.00;
(f) in relation to the tax period from 1 October 2010 to 31 December 2010, by decreasing the net amount so that the amount payable by RV Investments is decreased from $13,361.00 to $12,578.00; and
(a) set aside that part of the objection decision affirming the decision to impose penalties for recklessness for the tax period 1 July 2010 to
30 September 2010 and for intentional disregard for the tax periods from 1 July 2009 to 31 December 2010; and
(b) substitute a decision that penalties be imposed at the rate of 50% of any shortfall amount in the tax periods from 1 July 2009 to 31 December 2010 on the basis that they have resulted from recklessness by RV Investments.
I certify that the two hundred and ninety eight preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .................[sgd]..................................
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T15 at 56-59
[11] GST Act; s 33-3 The GST Act is expressed in terms of "you" which means that it applies to entities generally, including individuals, unless its application is expressly limited: GST Act; s 195-1.
[16] T documents; T47 and 48 at 700-738
Aurora Developments Pty Ltd v Federal Commissioner of Taxation (No 2) [2011] FCA 1090; (2011) 196 FCR 457
Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
BRK (Bris) Pty Ltd v Commissioner of Taxation [2001] FCA 164; (2001) 46 ATR 347
Bucknell v Commercial Banking Company of Sydney [1937] HCA 35; (1937) 58 CLR 155
Commissioner of Taxation v White (No 2) [2010] FCA 942; (2010) 117 ALD 335; [2010] ATC 20-205
Davis v Commissioner of Taxation [2000] FCA 44; (2000) 2000 ATC 4198
Defendant v Hasbauer [1967] HCA 14; (1967) 117 CLR 448
Dixon v Federal Commissioner of Taxation [2008] FCAFC 54; (2008) 167 FCR 287
Do v Minister for Immigration & Multicultural Affairs [2000] FCA 30
Federal Commissioner of Taxation v Dalco [1990] HCA 3; (1990) 168 CLR 614; 90 ALR 341; 20 ATR 1370; 64 ALJR 166; 90 ATC
Galea v Commissioner of Taxation [1990] FCA 456; (1990) 90 ATC 5060; [1990] FCA 456; 21 ATR 1108
Gauci v Federal Commissioner of Taxation [1975] HCA 54; (1975) 135 CLR 81
George v Eagle Air Services Ltd [2009] UKPC 21
Hart v Commissioner of Taxation [2003] FCAFC 105; (2003) 131 FCR 203
Kajewski v Federal Commissioner of Taxation [2003] FCA 258; [2003] ATC 4375
MacDonald v Australian Wool Innovation Ltd [2005] FCA 105
McCormack v Federal Commissioner of Taxation [1979] HCA 18; (1979) 143 CLR 284; 23 ALR 583; 9 ATR 610; 79 ATC 4111
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225
Minister for Immigration v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348; 110 ALR 367; 26 ALD 663
Pearson v Deputy Commissioner of Taxation [2009] FCA 558; (2009) 74 ATR 437
Professional Admin Services Pty Ltd v Commissioner of Taxation [2013] FCA 1123
Tuite v Administrative Appeals Tribunal [1993] FCA 71; (1993) 40 FCR 483; 17 AAR 165; 29 ALD 647
Vu v Commissioner of Taxation [2006] FCA 889; (2006) 63 ATR 341 at [9]
Weyers & Anor v Federal Commissioner of Taxation [2006] ATC 4523; (2006) 63 ATR 268; [2006] FCA 818
York Air Conditioning and Refrigeration (A/asia) Pty Ltd v The Commonwealth [1949] HCA 23; (1949) 80 CLR 11
25. That approach has been followed by the Tribunal in other cases. In Jones and Commissioner of Taxation [2003] AATA 84, I suggested at paragraph 26: 'recklessness means more than mere carelessness. It incorporates an element of rashness or heedlessness': see also Re Taxpayer and Commissioner of Taxation [2004] AATA 1304 at paragraph 94; Arrow Pearl Co Pty Ltd and Commissioner of Taxation [2005] AATA 340 at paragraph 98. Recklessness falls short of a finding of intentional disregard, where the taxpayer or the agent presses a claim they know to be wrong. Similarly, a finding of recklessness does not imply the applicant or his agent were dishonest: see Hart v Commissioner of Taxation (2003) 131 FCR 203 at 214 per Hill and Hely JJ."[218]
(1984) 2 FCR 368
(2011) 196 FCR 457
(1937) 58 CLR 155
(2008) 167 FCR 287
(2001) 117 FCR 424
(1967) 117 CLR 448
(1990) 168 CLR 614
(1975) 135 CLR 81
(2003) 131 FCR 203
(1979) 143 CLR 284
(1986) 162 CLR 24
(2001) 206 CLR 323
(1992) 34 FCR 348
(1996) 67 FCR 243
(1956) 30 ALJR 402
(1995) 63 FCR 535
(1993) 40 FCR 483
(1949) 80 CLR 11