NYACK INVESTMENTS PTY LTD v FC of T

Members:
JG Short M

Tribunal:
Administrative Appeals Tribunal

MEDIA NEUTRAL CITATION: [2005] AATA 468

Decision date: 24 May 2005

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JG Short (Member)

On 14 October 2004 the Commissioner of Taxation (the Commissioner) advised the applicant's directors, Mr and Mrs Elphick, of his decision to remit a general interest charge accruing from 1 October 2001 until 31 March 2002 in the sum of $641.43, but to refuse any further remission of the general interest charge.

2. By application lodged 9 March 2005 Mr Elphick, on behalf of the applicant, sought review by the Administrative Appeals Tribunal of the Commissioner's decision in respect of a general interest charge. The Commissioner contended that the Administrative Appeals Tribunal lacked jurisdiction to consider the merits of the application. A hearing was convened on 13 May 2005.

3. Mr Elphick, a director and representative of the applicant company, told the Tribunal that he had read a submission drawn by Mr Stephen Goggs, ATO General Counsel, dated 17 March 2005 in support of the Commissioner's

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ATC 2174

contention that the Tribunal lacked jurisdiction to consider the substance of the application. Mr Elphick said that he did not have any contrary submission to make, save and except that he considered the Commissioner's decision in respect of remission of a general interest charge to have been flawed or unfair.

Consideration

4. The Administrative Appeals Tribunal is a creature of statute, and may only review decisions where jurisdiction to do so has been conferred by statute. Section 25 of the Administrative Appeals Tribunal Act 1975 relevantly provides as follows:

``(1) An enactment may provide that applications may be made to the Tribunal:

• (a) for review of decisions made in the exercise of powers conferred by that enactment; or
• (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

...''

5. The authors of the CCH Master Tax Guide 2005 summarised this issue at page 1442, by saying:

``A taxpayer cannot object under TAA Pt IVC against a decision by the Commissioner on the remission of GIC or late payment penalties under the former regime, but may apply for judicial review under the Administrative Decisions (Judicial Review) Act 1977.''

6. This view was recently accepted as correct by Senior Member Pascoe in
Re Applicants and Federal Commissioner of Taxation [2005] AATA 300. Senior Member Pascoe, at paragraph 7, said ``Unfortunately, the Tribunal has no jurisdiction in relation to the imposition of GIC...''. The right to object or seek review of decisions made by the Commissioner is contained in Part IVC of the Taxation Administration Act 1953 (the Act). If there is no right to object in relation to a decision, under Part IVC of the Act, then that decision is not a taxation decision, and as a consequence this Tribunal does not have jurisdiction to review that decision. In this case, I have found that there is no right to object to a decision in respect of a general interest charge under Part IVC of the Act, and consequently the Administrative Appeals Tribunal lacks jurisdiction to consider the application.

Decision

7. The Tribunal does not have jurisdiction to determine the application.