Case: Re Wilson and Minister for Territories (1985) 7 ALD 225
Outcome: referred to
As to the notion of serious hardship above addressed in Filsell , the Tribunal below drew attention to Re Wilson and Minister for Territories (1985) 7 ALD 225, where Deputy President Hall discussed (at 229) the meaning of the similar notion of undue hardship, in the context of exercise of the statutory discretion of the Minister to discharge a liability for payment of rates on the ground of undue hardship, being a meaning said by Deputy President Hall to connote something more severe than substantial hardship . The Tribunal below also discussed Deputy President Hall's view that undue hardship means 'hardship that is excessive in the circumstances', and that 'foreseeability and control' constitute 'relevant considerations' to the determination of hardship . Understandably Deputy President Hall further observed that neither expression undue hardship nor substantial hardship is susceptible to 'precise quantification' . The rationalisation of authorities undertaken in Re Wilson has provided assistance to later administrative decisions concerning this and analogous legislative provisions. 22 As to the factor of fairness to other taxpayers identified in Re Wilson , being a factor which I would acknowledge to be relevant to the Tribunal's approach in principle to decision-making, the Tribunal recorded also that Mr Milne had earned a high level of income in the past, and was 'still earning income in a higher bracket'. Moreover the Tribunal found that Mr Milne had been '... able to acquire assets and to live reasonably well throughout his adverse business fortunes' , though the notions of high and higher are of course relative concepts, and need to be applied with care having regard to all conceivably relevant circumstances. In any event the Tribunal accepted in favour of the Commissioner the proposition that '... releasing Mr Milne would not be fair in the absence of special factors' , consistently with the previous Tribunal decisions of Ferguson and Commissioner of Taxation [2004] AATA 779 and Spicer and Commissioner of Taxation [2002] AATA 960 , the Tribunal exemplifying Ferguson as a case involving insufficient hardship for the availability of taxation relief. In the present case moreover, the Tribunal emphasised as a so-called 'special factor' in favour of Mr Milne for the grant of serious hardship relief his 'battle to continue work despite his very poor health and the need to support his dependant son until he finishes his schooling and obtains his HSC' . 54 In reaching that conclusion, I have been unable to accept that the Tribunal was bound to adopt and implement the approach to administrative review advocated by the Commissioner, inclusively by way of appraisal of any comparison of the value of Mr Milne's assets with the amount of his liabilities at any relevant point of time, having regard to the reality of the extent of the financial hardship which would be likely to attend an exaction of the amount required to satisfy Mr Milne's outstanding taxation indebtedness, inclusive of accrued statutory interest changes, which, if not leaving Mr Milne 'destitute without any means of support' , would have constituted nevertheless serious hardship , in accordance with the text of the Commissioner's policy guidelines framed by TR 2440 and in the light of the approach undertaken specifically and by way of practical exemplification in Re Filsell and Re Wilson .