Alexandar and Francoise Lowe and Commissioner of Taxation

[2013] AATA 549

[2013] AATA  549

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1865 & 1866
Re	Alexandar & Francoise Lowe
APPLICANT
And	Commissioner of Taxation
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	1 August 2013
Place	Brisbane

The application for a direction pursuant to section 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

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Deputy President P E Hack SC

REASONS FOR DECISION

Deputy President P E Hack SC

1 August 2013

1. The applicants were the directors of a company called Eco Homes Pty Ltd (the company). At some time in the past the company made payments to related entities in New Zealand that came to the attention of the respondent, the Commissioner of Taxation.  The Commissioner undertook an audit into the affairs of the company and published what is described as a position paper in August 2010. The company has been deregistered following its going into creditors’ voluntary liquidation in June 2011.

2. In a manner that is not presently relevant, the Commissioner, in dealing with the affairs of the applicants, had regard to the company’s transactions with the New Zealand entities and has taken the view that an amount of money described in one case as employee bonus and the other as deemed dividends should be added to the assessable income of the applicants. The applicants objected to the assessments. The objections were allowed in part only. The applicants then applied to the Tribunal in April 2012.

3. The matter now before me is an application by the applicant for an order under s 37(2) of the Administrative Appeals Tribunal Act 1975 (the Act). That subsection confers on the Tribunal, where it is of the opinion that other documents or class of documents may be relevant to the review of the decision, a power to give notice in writing to the respondent to lodge these documents in the Tribunal. It is a mechanism for supplementing the general obligations under s 37(1) of the Act where the Tribunal is of the opinion that documents may be relevant to the review of the decision.

4. Mr Charles Wilson, counsel for the applicant, submits that the Commissioner’s decision on the company’s objection and the Commissioner’s reasons for taking that view are relevant to the decision under review. Mr Scott Reeve, solicitor for the respondent, submits that the documents cannot be relevant and the threshold test is not satisfied.

5. I am not presently satisfied that the Commissioner’s views on the company’s transactions might be relevant to the issue that falls to be decided in the case brought by the applicants. Mr Wilson submits that the same taxable facts underlie each transaction. That may be so. Common taxable facts may be evidenced. But the Commissioner’s objection decision, which is in draft form, simply records the Commissioner’s view of the facts.  It would not, in my view, constitute taxable facts in themselves. That the Commissioner may have taken a view of certain evidence regarding one taxable entity does not have any adjectival relevance to another, even related, taxpayer.

6. Mr Wilson says that such a decision might evidence facts not already known. I find it impossible to conceive that the respondent might know facts not known by the applicants, who were the directors of the company at all material times.

7. Having not been satisfied that it is appropriate to make a direction under s 37(2) of the Act, I refuse to make the direction sought.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 1 August 2013

Date(s) of hearing	1 August 2013
Counsel for the Applicant	Mr C Wilson
Solicitors for the Applicant	Attwood Marshall Lawyers
Respondent	In person