Case: Re Filsell and Commissioner of Taxation [2004] AATA 1012
Outcome: referred to
The Tribunal next referred to the ' two stage process ' identified and discussed by Member Trowse in Re Filsell and Commissioner of Taxation [2004] AATA 1012 in the following context of his consideration of the implications of s 340-5(3) of the Administration Act: 'In the Tribunal's opinion, the language of the legislation requires a two stage approach. First, the decision-maker must decide whether the settlement of the liability will result in serious hardship. If that decision is favourable to the applicant, the discretion offered by sub-section 340-5(3) then falls for consideration. In reaching the decision to release in whole or part, the question to be addressed is whether, in all the circumstances, it is just and proper to provide the requested relief. Matters pertaining to the incidence and consequence of the tax and the effect of its exaction upon the affairs of the person will bear upon the issue of whether the relief is just and proper. Support for the two stage approach is to be found in the decision of the High Court in Rex v Trebilco; ex parte F.S. Falkiner &amp; Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 .' I have of course extracted s 340-5(3) of the Administration Act earlier in these reasons. I would respectfully seek to apply that principled approach. 18 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. 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 .