Thompson and Commissioner of Taxation (Taxation)

[2019] AATA 4678

Thompson and Commissioner of Taxation (Taxation) [2019] AATA 4678 (12 November 2019)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2019/6172

Re:Kym Thompson

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:12 November 2019

Place:Brisbane

The Tribunal does not have the power to make a stay order in the circumstances of this case.

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Deputy President Bernard J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – STAY APPLICATION – whether the Tribunal has the power to stay the operation of an objection decision – power to stay under section 41 – operation of section 14ZZB – Tribunal does not have jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) section 41

Taxation Administration Act 1953 (Cth) sections 14ZZB, 14ZZM

REASONS FOR DECISION

Deputy President Bernard J McCabe

12 November 2019

1. The applicant has filed an application for review of an objection decision made by the Commissioner of Taxation. That review has only just commenced. While the review proceeds, the applicant has asked the Tribunal for an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) staying the operation or implementation of the decision under review. She is particularly concerned about interest accruing while the review proceeds. She wants the Tribunal to tell the Commissioner to hold off imposing that interest while the Tribunal completes its review.

2. As it happens, the Commissioner says the interest is calculated automatically but he has decided to remit the interest to the applicant while the review proceeds. That is welcome news for the applicant in the short term. The status quo will effectively remain while the review proceeds. The Tribunal has also taken steps to expedite her review. She did not press her application for a stay in those circumstances.

3. I should deal formally with the application for a stay in any event. These reasons will provide helpful guidance for others seeking a stay in relation to taxation appeals.

4. Section 41(1) of the AAT Act says the application for review does not of itself prevent the decision under review from coming effect. If the applicant wishes to stay the operation or implementation of the decision, he or she must seek an order under s 41(2) of the AAT Act. The stay power is given “for the purpose of securing the effectiveness of the hearing and determination of the application for review.” Assuming the requisite purpose is present, the Tribunal may order the stay where it considers it is “desirable to do so after taking into account the interests of any persons who may be affected by the review…”.

5. The application for a stay will typically be dealt with in the course of a stay hearing. The Tribunal will in that event hear from the applicant and the respondent and determine whether a stay should be granted and, if so, whether any conditions should apply.

6. At least that is what usually happens. Special rules apply in relation to reviews of taxation objections covered by Part IVC of the Taxation Administration Act 1953 (the TAA). Section 14ZZB of the TAA says s 41 of the AAT Act – the provision in the AAT Act which contains the general stay power – does not apply in relation to a reviewable objection decision or an extension of time refusal decision. Section 14ZZM of the TAA goes on to provide:

   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.

7. The practical effect of those provisions is clear. The Tribunal does not have the power to order a stay in a case like this. We cannot require the Commissioner to stop imposing interest (although the Commissioner has voluntarily agreed to do that in this case) nor can we prevent the Commissioner from undertaking debt recovery proceedings (not that there is any suggestion of him commencing recovery proceedings in this case). The Commissioner will often be prepared to negotiate with the applicant about these matters, as he has done in this case, but we cannot use the stay power to restrain him.

   Conclusion

8. The Tribunal does not have the power to make a stay order in the circumstances of this case.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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Associate

Dated: 12 November 2019

Date(s) of hearing:	1 November 2019
Date final submissions received:	1 November 2019
Applicant:	In person
Respondent:	In person