Miscellaneous Taxation Ruling MT 2037 - Miscellaneous taxes: administrative law: guidelines for preparing statement of reasons for decision

What this ruling is about: As foreshadowed in recent communications from National Office, statements of reasons requested pursuant to section 13 of the AD(JR) Act may now be prepared and issue without reference to National Office. Of course this Ruling is subject to the need for National Office input and/or perusal where this is perceived to be desirable or necessary. The following guidelines and examples have been prepared to assist officers in the task of preparing satisfactory statements of reasons. Access to the reasons for decisions is fundamental to the whole scheme of administrative review embodied in the Administrative Decisions (Judicial Review) Act ("AD(JR) Act") and the Administrative Appeals Tribunal Act. 2. The underlying reasons for imposing an obligation in section 13 of the AD(JR) Act to furnish statements of reasons are:


Ruling: Persons Entitled to Statements of Reasons: 3. Sub-section 13(1) of the AD(JR) Act provides as follows: | General Observations on Requirements of Sub-section 13(1): 4. The following observations may be made in relation to sub-section 13(1): | Time Limit for Providing Statement of Reasons: 5. Sub-section 13(2) of the Act provides as follows: 6. The requirement to furnish the statement is specifically expressed to be subject to section 13. It is also subject to the operation of: | Non-Entitlement to Reasons: 7. Sub-section 13(3) of the Act provides as follows: 8. This provision is self-explanatory. It provides a procedure whereby a decision-maker, such as the Commissioner or a Deputy Commissioner, may obtain redress where he considers that the person who requests a statement of reasons is not entitled to do so. It is important to note that the right either to notify the person who made the request of his opinion or to apply to the court attaches personally to the decision-maker. The circumstances in which a person who has made a request under sub-section 13(1) in relation to a taxation decision may not have been entitled to do so include the following: 9. Sub-section 13(4) of the Act provides as follows: 10. This sub-section provides the method for finalising an application to the court under sub-section 13(3). Where the decision-maker gives a notice under sub-section 13(3) or applies to the Federal Court under sub-section 13(4A), he is not required to give a statement of reasons unless the court declares the applicant to be entitled to a statement. 11. Sub-section 13(4A) of the Act provides as follows: | Time Limits for Requests for Statements of Reasons: 12. Sub-sections 13(5) and 13(6) of the Act provide as follows: 13. The effect of these sub-sections is that a request for reasons may be refused by the decision-maker where: 14. There is no specific provision in the Act allowing the Court to extend the period of 28 days within which the request for reasons may be made under paragraph 13(5)(a) (Waterhouse v. D.F.C. of T. 86 ATC 4631, 17 ATR 997) 15. The court is empowered, however, by sub-section 13(b) to declare whether a request was made within a reasonable time or not. The person who made the request may apply to the court for a declaration that the request was made within a reasonable time either before or after any refusal by the decision-maker to furnish the statement. If the decision-maker does refuse to furnish the statement he must by sub-section 13(5) give to the person who made the request notice in writing within 14 days after receiving the request: | Further and Better Particulars of Reasons to be Supplied: 16. Sub-section 13(7) of the Act provides as follows: 17. In FCT v. Nestle Australia Ltd 86 ATC 4760 17 ATR 1130 the full Federal Court recognised that this sub-section empowers the Court to order that further and better particulars in relation to matters specified in the order be given in respect of a written statement furnished in response to a request made under sub-section 13(1). However the Court rejected the Commissioner's contention that sub-section 13(7) provides a substitute for the processes of discovery and inspection and therefore the Court could order discovery and inspection even though the taxpayer does not call sub-section 13(7) in aid of his case. | Classes of Decisions Excluded from Section 13 may be Extended by Regulation: 18. Sub-section 13(8) of the Act provides for the making of regulations to declare that certain classes of decisions, in addition to those set out in Schedule 2 to the Act, are not to be subject to the obligation to furnish a statement of reasons under section 13 of the Act. Sub-section 13(9) provides for the form in which classes of decisions may be specified in the regulations. Sub-section 13(10) provides that regulations so made only apply prospectively. | Certain Information Not to be Disclosed: 19. Section 13A of the Act provides as follows: 20. The purpose of section 13A is to ensure that the obligation under section 13 to provide a statement of reasons does not require the disclosure of information if it relates to the personal or business affairs of a person other than the person requesting the reasons. This will be the case if the information was supplied in confidence or under a statutory duty, which would reveal a trade secret or which is subject to a secrecy provision in some other legislation e.g. section 16 of the Income Tax Assessment Act. Sub-section 13A(1) defines the category of information to which section 13A relates. 21. There is no provision in section 13A specifying the time within which a decision-maker must give written notice to a person requesting a statement of reasons stating: 22. The Act appears to envisage that such a notice should be given within the same time limit as is specified in sub-section 13(2) for the furnishing of statements of reasons, namely, "as soon as practicable, and in any event within 28 days, after receiving the request". As indicated below (see paragraph 62(c)), this is the time limit that it is suggested should be adhered to. 23. Section 14 of the Act provides as follows: 24. Section 14 provides that a decision-maker is excused from the obligation to provide any information concerning a specified matter in a statement of reasons under section 13 where the Attorney-General certifies, for any of the reasons specified in sub-section 14(1), that information would be contrary to the public interest. 25. It is not expected in the normal run of taxation decisions that the Commissioner or his officers will be required to furnish many statements of reasons that would involve a disclosure of information that would be contrary to the public interest by reason that it would prejudice the security, defence or international relations of Australia or by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet. While some statements of reasons could involve disclosure of information concerning a specified matter that would be contrary to the public interest for the reason that it would be contrary to the secrecy provisions contained in section 16 of the Income Tax Assessment Act and the comparable secrecy provisions in other taxation legislation the appropriate procedure that would normally be followed in such cases is that provided for in section 13A of the Act as discussed above. 26. Like section 13A, there is no provision in section 14 specifying the time within which an application should be made to the Attorney-General for a certificate in terms of the section or within which the Attorney-General should make such a certification. However, paragraphs 14(2)(a) and 14(3)(a) also seem to envisage that the Attorney-General's certificate will be made available within sufficient time to enable a statement of reasons to be furnished within the 28 day time limit to be specified in sub-section 13(2). | AD(JR) Act to Operate Notwithstanding Anything in Existing Laws: 27. Section 4 of the Act provides that the Act has effect notwithstanding anything contained in any law in force at the commencement of that Act. The meaning of the word "law" in the context of section 4 is accepted as including any "enactment" as defined in sub-section 3(1). The section is expressed in very general terms and, taken at its face value, it would have the effect of prevailing over, amongst other things, contrary provisions of any other Act. Although one consequence of section 4 would otherwise have been that section 13 of the AD(JR) Act would have overriden the secrecy provisions contained in taxation legislation, the provisions of sections 13A and 14 of the AD(JR) Act ensure that the secrecy provisions will remain intact. | Form of Section 13 Request Need Only Substantially Comply with Sub-section 13(1): 28. The Secretary to the Department of the Prime Minister and Cabinet sought advice from the Attorney-General's Department of the circumstances in which the obligation arises to furnish a statement of reasons under section 13 of the Act. It was specifically inquired whether the person requesting a statement is required to express or imply that the request be made under the Act. Set out in the following paragraphs is the substantial part of the reply from the Attorney-General's Department. | Whether Section 13 Statements of Reasons Become Part of the Record: 29. There is no specific provision in the Act requiring that a statement of reasons (sub-section 13(1)) or a further and additional statement of reasons (sub-section 13(7)) will become part of the record of the decision for the purposes of any application under section 5 for an order of review in respect of a decision. However, it can reasonably be expected that such a statement or additional statement will be treated as part of the record so that it may be subject to corrective action (if necessary) by appropriate order of the court. This appears to be what the Commonwealth Administrative Review Committee (the Kerr Committee) envisaged in its report of August 1971 at pages 78/79, paragraph 266. | Obligation to Furnish Section 13 Statement of Reasons Personal to Decision-Maker: 30. It is important to note that the obligation to furnish reasons imposed by section 13 attaches personally to the decision-maker. The actual reasons relied upon by the decision-maker at the time the decision was made must be set out, and not other reasons or facts which may subsequently have come to light or appear to be more desirable : Re Palmer and Minister for Capital Territory (1978) 23 ALR 196 at 209; 1 ALD 183 at 196. Section 17 of the Act provides for cases where a person who made a decision in the performance of the duties of an office either no longer holds that office or for some other reason, is not performing the duties of that office e.g. temporary absence due to illness, leave or overseas travel. | Whether Decision Can be Supported by Other Reasons: 31. The question has been considered whether a decision can be supported before the Federal Court on an application under section 5 for an order of review for reasons other than those on which it was originally based. The Committee of Review in its Report on Prerogative Writ Procedures (the Ellicott Committee Report) clearly envisaged that a decision which can be so supported should not necessarily be upset and that the court should have power in such cases to confirm the original decision (p.9, para 38). The view is therefore taken that, in an appropriate case, it is open to the Commissioner to seek to support a decision for reasons other than those on which it was originally based. | Failure to Furnish Section 13 Statements of Reasons: 32. There is no sanction provided in the Act for a failure to furnish a statement of reasons, on request, within the prescribed time limit of 28 days (although mandamus may be sought under s39B of the Judiciary Act - see Clanwilliam v. Bartlett, unreported decision of Mr Justice Fitzgerald 8 May 1984). Notwithstanding this, however, it is intended that every effort be made to comply with the provisions of section 13 within the time limit prescribed. | PROCEDURES: 33. There is an obvious need at the outset to identify urgently requests by taxpayers for statements of reasons. It can be expected that some notices under section 13 will specifically refer to section 13 of the Act and request a statement in writing in terms of the section viz "a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision". No difficulty is expected in identifying such requests. In other cases, however, it can be expected that notices by taxpayers will make no reference to section 13 of the Act but will merely seek reasons for particular decisions. In the latter cases, provided that the notices are in some way directed to the provisions of section 13, the view is taken that they should be regarded as a section 13 notice and would need to be dealt with accordingly. A notice under section 13 may be in the form of a written communication expressed in words that are reasonably calculated to convey to the understanding of the person to whom it is addressed that the writer is seeking a relevant statement of reasons (see also paragraphs 41-50) and Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 A.L.R. 500 where Mr Justice Woodward at page 508 stated that: | Allocation of Requests: 34. The PAO or APAO in the Appeals area in each Branch Office will examine the requests and determine whether they are, or ought to be, properly a matter falling within the responsibility of the Appeals area or are matters relating to decisions taken by other areas of the office where Appeals did not have, and ought not to have had, an involvement (other than that of keeping statistics). For instance, the Sales Tax area, the Debt Management area or the Audit area will each have sole responsibility for the preparation of an appropriate response to requests in respect of decisions made in those areas of the Office. 35. In the former case the matter will be allocated to an appropriately experienced Advising Officer in Appeals to determine the competency of the request, to ascertain the terms of the decision, to collect the relevant documents and to formulate a proposed course of action in relation to the request including drafting a response to the request for reasons where this is considered to be the appropriate course of action. 36. In the latter cases the matter will be referred to the area of the office where the decision was made for action similar to that in paragraph 35 above. The assistance of the Appeals area may be sought by that other area if necessary. | STATEMENT OF REASONS - FORMAT: 37. As to the appropriate content of statements of reasons, there can be no blueprint or universal pro forma for such statements. What would be an adequate statement of reasons for one decision will not necessarily be adequate for another. The characteristics of an individual decision will largely determine the material to be set out in a statement of reasons. Generally, the more complex a decision, the greater will be the material necessary in a statement of reasons for that decision. Bearing in mind the purpose and function of a statement for reasons, the desirable aim of a decision-maker should always be to provide as full and adequate a statement as he or she can in all the circumstances. What is clear is that Parliament certainly intended that the person requesting the statement of reasons should be fully informed. 38. Generally, the adequacy of a statement of reasons may be tested by asking two linked questions: 39. A statement of reasons must be intelligible to the recipient (Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206 and 209; 1 ALD 183 at 193 and 196) and be of sufficient precision to give him or her a clear understanding of why the decision was made. The court will judge the adequacy of a statement of reasons by reference to the purposes of the obligation to furnish reasons, in particular, that of enabling persons affected to determine whether to challenge the decision and how to do so. An important practical point to note is that if a valid request for a statement of reasons is made under the Act and the statement provided in response to that request is inadequate or insufficient to meet the requirements of the Act, the 28 day time period for lodging an application for review does not commence to run (see Mr Justice Wilcox in Herlihy v Minister for Foreign Affairs (16 November 1984)). 40. A statement of reasons must contain all three elements set out in sub-section 13(1) : the findings on material questions of fact, a reference to the evidence or other material on which those findings were based, and the reasons for the decision. The Act does not require that the three elements be set out under separate headings although in many cases it may be convenient to do so. | The Facts: 41. The findings of fact to be set out are on the questions of fact material to the decision. There is no obligation to set out findings on all questions of fact irrespective of their substantiality or materiality. It is therefore not necessary that the statement canvass all of the evidence or other material submitted, or all of the contingencies raised by the person seeking the decision in question. What is required is that the decision-maker sets out such findings of fact as were taken into account in making the decision and were sufficient to resolve the material issues. The decision-maker must make amply clear the factual basis on which he has proceeded; all material findings of fact that he relied on must be set out. If a matter was regarded by the decision-maker as material, and was considered by him, then the findings of fact in relation to it must be set out. 42. In so far as the statement of reasons does not set out findings of fact on a matter, it is possible that the court may infer that those facts were considered to be immaterial; if the court finds that those facts are material, it may follow that the decision-maker has erred in law : Sullivan v Department of Transport (1978) 20 ALR 323 at 348-9 and 352-3 and Public Service Board of NSW v Osmond (1986) 4 Leg. Rep. 1 at 2, where the High Court said "if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason". See also Ahern v D.F.C. of T. 83 ATC 4698 17 ATR 807 where the Federal Court held that the fact that the taxpayer had lodged an objection, the fact that the objections had not been dealt with and the fact that the taxpayer had not been informed of the basis on which he had been assessed were relevant considerations which the Deputy Commissioner was bound to take into account in deciding whether to grant or refuse an extension of time for payment of tax. It was conceded that he had failed to do this and the decision was set aside for the Deputy Commissioner to reach a fresh decision taking into account all relevant facts. 43. In Clarke & Kann v D.F.C. of T 83 ATC 4764 15 ATR 42 the court canvassed various considerations which were or were not taken into account in deciding whether compliance with section 264 notices should be insisted upon. Sheppard J. also gave the reminder that it is only the material which was before the decision-maker that is important, not material led in evidence before the court by the applicant (83 ATC at p.4772) (15 ATR at p.51). 44. Findings on questions of fact may relate to what are sometimes called basic or primary facts (i.e. those established directly by the evidence or other material) or they may relate to what are sometimes called ultimate facts (i.e those derived or inferred from findings on basic or primary facts). Findings on ultimate facts will often be expressed in terms of the language of a statutory standard, for example, that a person would be likely to suffer hardship if such and such an act or thing is done or not done, as the case may be. The findings of primary facts will be based on such material as may be available concerning his income, his savings, his assets, his family size, his outstanding debts and the like. It will ordinarily be necessary to state the material primary facts and the process of derivation or inference from those facts in order to provide adequate information about the way in which the decision was reached. 45. Findings on facts are distinguishable from subjective judgments or opinions. Where a subjective judgment or opinion is based on facts, it is desirable that those underlying facts should be set out as well as the judgment or opinion formed on the basis of them. | The Evidence or Other Material: 46. The evidence or other material upon which the findings on material questions of fact are based must be referred to in the statement. As previously stated, the requirement is that they be referred to and not that they be set out in the statement. A reference to the evidence or other material should, however, be sufficiently specific for persons affected to identify that which is referred to, i.e. the detail of the statement should be sufficient to enable the applicant to decide whether there are grounds for challenging the legality of the primary decision (see Elliot v London Borough of Southwark [1976] 2 All E.R. 781 at 791). The evidence or other material may be identified by stating its source or nature, whichever is the more intelligible and informative. In A.R.M. Constructions Pty Limited & Ors v D.C. of T. (86 ATC 4213, 17 ATR 459, Burchett J), it was stated that a purported list of all the documents which were before the decision-maker is not sufficient. 47. Where the evidence or other material before the decision-maker is conflicting, the reasons for preferring some and rejecting other items should be stated. | The Reasons for the Decision: 48. Every decision should be capable of a logical explanation. A statement of reasons should contain all the steps of reasoning linking the facts to the ultimate decision which are necessary for a person affected to understand how the decision was reached. It would not be helpful to a person affected to be told simply that the decision in respect of which he sought reasons had been reached, for example, because he was considered to come within the ambit of a particular statutory provision. The actual reasons relied upon at the time the decision was made are to be set out, and not other reasons or facts which may subsequently have come to light or appear to be more desirable (Re Palmer, supra). 49. The criteria relevant to the decision, the weight to be attached to each criterion, and the conclusion reached on the criteria should be stated. Clarity of explanation may make it desirable in some cases to state separately the conclusion on each criterion. The statement of reasons must not leave the reader to guess or to choose between conflicting inferences. It should not consist of such uncritical generalities or looseness or expression as to make it impossible to determine what lies behind the conclusions. 50. The reasoning should identify any element of official policy or official guideline (whether written or oral and whether emanating from the Government or internal to the Australian Taxation Office) or official practice which is part of the justification for the decision made. See Ahern (supra) where documents detailing official policy in relation to extensions of time for payment of tax were enclosed as attachments to the statement of reasons. Care must however be taken in attributing weight to criteria found in policies or guidelines and relied upon to justify the decision. A recent Tribunal decision reported as Case U88 87 ATC 505, Tribunal Case 66 18 ATR illustrates the point. The issue in that case was whether the Commissioner's decision to impose section 226 additional tax was the correct and preferable decision in the circumstances. Income Tax Ruling 2012 provided relevant guidelines to taxation officers considering requests for remission of section 226 additional tax but in directing the Commissioner to reduce the additional tax payable the Tribunal, at p.512, emphasised "that if the guidelines are to be applied as signposts rather than fences, the computations inherent in them must be tempered by an exercise of discretion. To insist on a blind application of a culpability factor of 40% is not to exercise the discretion which the Commissioner is bound to exercise under sub-section (3) ... The application of an inflexible formula to those facts without considering other elements, is not a proper exercise of discretion". 51. Decision-makers frequently act upon recommendations, reports and results of investigations carried out by subordinate officers or appropriately qualified experts. Where these recommendations etc. are considered in making a decision, the statement of reasons should incorporate the recommendation, etc. as well as the facts (and a reference to the evidence or other material on which they are based) and the reasons leading thereto. It is insufficient merely to state that the decision-maker has relied upon the advice of a named person. 52. Where a decision is made in which the decision-maker must apply his judgment or experience to the facts, or in which the decision-maker must exercise a statutory discretion in relation to the facts, in explaining the process of reasoning leading to the decision it may be sufficient: 53. Where a person who has made a request under section 13 has presented arguments, submissions or evidence to the decision-maker, it is desirable that these should be referred to and the way in which they were dealt with be indicated. For example, in Barina Corporation Ltd. v. D.F.C. of T. 85 ATC 4186 16 ATR 336 the person who requested reasons had applied for the exercise in his favour of a statutory discretion and took advantage of the opportunity of putting before the decision-maker such material as he believed would support his case. In his statement of reasons the Deputy Commissioner stated that he "was not satisfied that the company was unable to pay the tax assessed by 19 April 1984" a finding which the Federal Court held was consistent with an insufficiency of information to find either way. In supporting the Deputy Commissioner's evaluation of the applicant's material Wilcox J. stated that no principle of law requires the decision-maker to give advance notice of a view that the material is insufficiently persuasive to warrant a favourable exercise of discretion. 54. In Nestle Australia Ltd. v. D.F.C. of T. 86 ATC 4499 17 ATR 747 the Federal Court (Wilcox J.) noted that in a case where the complaint is that a matter considered by the decision-maker was extraneous to the decision or that the decision reflected an error of law it will often be enough for the applicant to point to the statement of section 13 reasons in which the decision-maker has revealed the matters taken into consideration and the process of reasoning involved. However in a case in which the complaint is that the decision-maker failed to take into account a particular matter the section 13 statement will normally reveal that the particular matter was not considered. It will not normally show the existence of facts said to be material or their availability to the decision-maker. These matters must be separately proved and sometimes discovery will be necessary to procure access to documents necessary to be tendered for this purpose. 55. Errors contained in a section 13 statement may lead to an inference that the decision-maker took irrelevant considerations into account and failed to take into account relevant considerations : Lally v The Minister for Immigration & Ethnic Affairs (unreported, 17 Jan 85, Keely J). As well, the Federal Court can look at the reasons provided by a decision-maker and conclude that he did not give any consideration at all to relevant matters: Tagle v Minister for Immigration & Ethnic Affairs (1983) 48 ALR 379 at 386-7. Also see A.R.M. Constructions Pty Limited v D.C. of T. (supra) where Burchett J. severely criticised a section 13 statement for making no mention of argument put by the applicants that the objections had specially good prospects of success, and, for making no reference, as a matter taken into account, to the likely effects upon the business of the applicants of the almost immediate payments of tax due, or to the claim made on their behalf in respect of that matter. In that case the applications were remitted to the Deputy Commissioner for further consideration according to law. 56. It is recognised that section 13 of the Act increases the work expected in each office. This occurs in two ways. First, it is most desirable that in respect of all classes of decisions reviewable under the Act (other than those where the operation of section 13 is to be specifically excluded) a sufficient record be made of the decision at the time it is given to enable a statement fulfilling the requirements of section 13 to be given later if requested. Secondly, the actual processing of requests and the writing of the reasons takes time. 57. It is possible that procedures may be able to be adopted to minimise the additional workload. For instance, it may be appropriate that a pro forma document or rubber stamp, with provision for insertion of the findings on material questions of fact, evidence and the reasons which led to the decision, be filled out at the time the decision is made and entered on the relevant file. Wherever practicable at the time decisions are made it would be advantageous for the decision to be accompanied by a statement setting out findings of fact, a reference to the evidence or other material on which those findings were based and the reasons for the decision. If this is done, paragraph 13(11)(b) of the Act would be satisfied and would obviate the need to furnish later any statement of reasons under sub-section 13(1). 58. As to further decided cases that bear on the extent of information that will need to be supplied in a statement of reasons some guidance is available from decisions of the Administrative Appeals Tribunal under the comparable provisions (section 28 and 37(1)(a)) in the Administrative Appeals Tribunal Act (the AAT Act) for the supply of reasons for decisions. In Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183 the Tribunal held that the statement of reasons furnished to the applicant in that case was inadequate and that further and better particulars, as detailed in the decision, should be lodged with the Tribunal. The Tribunal in that case made some useful observations on what is required in a statement given under section 28 and 37 of the AAT Act. It emphasised, in particular, that the actual reasons for the decision and the findings on material facts at the time the relevant decision was taken must be set out, that the applicant is entitled to be sufficiently informed of the matters which prompted the decision to determine whether he or she wishes to take the matter further, and that the statement must be intelligible to a layman. In Re Palmer and Minister for the Capital Territory (No. 2) (1979) 2 ALD 209 the Tribunal held that the additional information supplied by the Minister was sufficient to comply with the Tribunal's previous order. The fact that there may have been a better means of providing information to the applicant was regarded as not being to the point. 59. On the form that a statement of reasons must take, the decision of the Tribunal in Re Harkins and Minister for the Capital Territory (1978) 1 ALD 537 is also relevant. The Tribunal mentioned that a statement of reasons that might be adequate in one case might not be sufficient in another. The Tribunal also made it clear that a reference to documentary evidence on which a decision was based does not lead to an obligation to produce the documents prior to the hearing. 60. The Tribunal in Re Ajamian and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 366 criticised a statement of reasons furnished under section 37 of the AAT Act because it did not: 61. Attached at Appendices C, to H are examples of the form of statements under section 13 which were recommended by National Office. | ALTERNATIVE COURSES OF ACTION: 62. Broadly, the appropriate response to a request for a statement of reasons may take one of the following forms: COMMISSIONER OF TAXATION 20 AUGUST 1987




"13(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision". | "13(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request." | "13(6) For the purposes of paragraph (5)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Court, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made." | "13(7) If the Court, upon application for an order under this sub-section made to it by a person to whom a statement has been furnished in pursuance of a request under sub-section (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons." | (4) Nothing in this section affects the power of the Court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to the Court." | "It is to be noted that no form of request is prescribed. Nor does section 13 require that the request be stated as being made pursuant to the Judicial Review Act. Persons making decisions to which that Act applies must be taken to know of their obligation to supply reasons when requested to do so. | They should not need to be referred to the relevant legislation. Nor should a person with rights under the Judicial Review Act be denied those rights merely because he does not know of them, or only knows of them vaguely, and so makes a request in some informal letter or other communication which does not follow the wording of s13(1)." | DECISIONS TO WHICH THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT DOES NOT APPLY - SCHEDULE 1: While the Act applies generally to administrative decisions made under statutory powers, certain classes of decisions are wholly excluded from the scope of the Act including certain classes of taxation decisions. This is achieved by: | 2. The classes of taxation decisions that are included in Schedule 1 and therefore totally excluded from the operation of the Act are as follows: | 3. In addition, such decisions made under regulations in force under the abovementioned Acts are also totally excluded from the scope of the Act. By sub-section 3(7) of the Act, a reference in Schedule 1 to any of the abovementioned Acts (or to any provision of those Acts) is to be read as including a reference to regulations or by-laws in force under any of those Acts (or for the purpose of any such provision). | 4. Paragraph (e) was discussed by Ellicott J. in Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 4 ALD 277 at 288-9. He stated: | "under the Income Tax Assessment Act, the Commissioner can make a default assessment in certain circumstances e.g. if he is not satisfied with the returns furnished by any person but before making the assessment he must be so satisfied. A decision that he is so satisfied is, in my view, an example of a decision 'leading up to' the making of an assessment. He may then proceed to make an assessment and in the course of so doing will make a number of decisions which form 'part of the process of making it'." | 5. Decisions held to fall outside the ambit of paragraph (e) are as follows :- | 6. Decisions held to fall within the ambit of paragraph (e) of Schedule 1 are as follows :- | 7. The Commissioner in preparing a regulation 35 statement is not involved in a process of 'making a decision' but in furnishing to a statutory tribunal details of a decision he had made at some earlier time (T Dalton v Commissioner of Taxation, Full Federal Court 9 August 1985). | 8. In D.F.C. of T. v. Clarke and Kann 84 ATC 4273 at p.4276, 15 ATR 483 at p.486 the Full Court of the Federal Court of Australia said | "It is inappropriate to attempt to define the boundary between those decisions which are and those which are not 'decisions leading up to' the making of an assessment. However a decision does not lead to the making of an assessment merely because it precedes the making of an assessment or because its purpose is to enable or facilitate the making of any assessment which may be made. A decision is not a decision leading up to the making of an assessment unless the making of an assessment has followed or will follow from the decision." | Another case which assists in distinguishing the Commissioner's assessment function and his administrative function is Intervest Corporation Pty. Ltd v. FCT and D.FCT 84 ATC 4744 15 ATR 1204 in which the Federal Court had to deal with the question of whether or not the grant or refusal of a request for a further period to pay dividends is within the scope of clause (e) of the Schedule. In finding that it was not Smithers J. held that the Commissioner's decision related to the question of whether a taxpayer shall be permitted to carry out transactions which may reduce the amount of income upon which he is liable to pay tax. | DECISIONS FOR WHICH REASONS ARE NOT REQUIRED - SCHEDULE 2: There are certain classes of decisions (including certain classes of taxation decisions) which, though not wholly excluded from judicial review under the Act, are specifically excluded from the scope of section 13 of the Act. These classes of decisions are not subject to the obligation to furnish a full statement of the reasons for the decisions but are nevertheless reviewable by the Federal Court under the Act. Again, this is achieved by: | 2. In addition, provision is again made in the Act (sub-section 13(8)) for the making of regulations to exclude further classes of decisions from the obligation under section 13 to give reasons. | 3. The obligation under section 13 to provide a statement of reasons does not require the disclosure of personal or business information which has been supplied in confidence, under a statutory duty, which would reveal a trade secret or which is subject to a secrecy provision in some other legislation e.g. section 16 of the Income Tax Assessment Act (section 13A). Furthermore, the obligation under section 13 does not require the disclosure of certain information that the Attorney-General has certified would, if disclosed, be contrary to the public interest (section 14). | 4. The classes of taxation decisions that are excluded from the obligation under section 13 to give reasons, but otherwise subject to review by the Federal Court under the Act, and which are specified in Schedule 2 to the Act are as follows: | 5. Generally, paragraphs (e), (f) and (m) in Schedule 2 of the Act ((a) (b) and (c) above) are considered to be sufficiently wide in their scope to encompass such matters as decisions taken in connection with civil proceedings for the recovery of taxes and charges administered by the Commissioner and decisions taken in connection with proceedings (civil or criminal) by way of taxation prosecutions or other proceedings for contraventions of taxation laws administered by the Commissioner. | 6. A decision to seek to recover moneys from a taxpayer is so closely bound up with any subsequent decision to actually sue, that they both must answer the general description of "decisions in connection with the institution or conduct of proceedings in a civil court" for the purposes of Schedule 2(f) and therefore are decisions to which sub-section 13(1) does not apply (Mostyn v. D.F.C. of T. 86 ATC 4930) | With reference to your letter dated October 198 , the following information is provided in relation to the decision not to accept as valid notices of objection lodged against income tax assessments for the years ended 30 June 19 and 19 . The original statement incorrectly omitted references to the statutory declaration signed by on May 19 . A. Findings on material questions on fact a. The notices of assessments for the years ended 30 June 19 and 19 were posted to the taxpayer at her address for service of notices by pre-paid letter post on February 198 . b. The statutory declaration sworn by on May 198 , which appears not to be based on records but merely in recollection, does not establish that the notices of assessment were not received at the address for service on or about February 198 . c. The circumstances did not establish that the taxpayer had satisfied the requirements of Section 185 of the Income Tax Assessment Act. B. Evidence or other material on which these findings were based a. The notices of assessments for the years ended 30 June 19 and 19 dated February 198 . b. Notice/Cheque Acquittance Reconciliation Statement and Mail Statement of February 198 . c. The notices, received in my office on May 198 , disputing the correctness of the assessments. d. The statutory declaration sworn by on May 198 . C. Reasons for the decision a. The notices of objection were not posted to or lodged at my office within 60 days after service of the notices of assessment for the years ended June 19 and 19 . | REQUEST FOR STATEMENT OF REASONS: I refer to your letter of October 198 concerning the income tax affairs of ('the taxpayer'). You asked for a statement of reasons under section 13 of the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision not to grant the taxpayer an extension of time to pay his outstanding taxes in respect of the years ended 30 June 19 to 30 June 19 . The findings on material questions of fact were that: (a) The only grounds stated by the taxpayer as warranting an extension of time for payment were that: (i) Objections lodged to the assessments for the years ended 30 June 198 , 198 and 198 were likely to be allowed by the Commissioner. (ii) Due to a 'downturn in earnings and an adverse cashflow' the taxpayer was unable to pay the full amount of tax outstanding or, alternatively, that payment on the due date would wholly or partly abolish the taxpayer's business. (b) The circumstances did not warrant the granting of an extension of time for payment of outstanding taxes pursuant to sub-section 206(1) of the Income Tax Assessment Act ('the Act'). The evidence or other material on which the findings were based were : (c) Notices of Objection for the years ended 30 June 198 , 198 and 198 ; (d) A Balance Sheet as at October 198 ; (e) An Income and Expenditure statement for the period July 198 - October 198 ; (f) As at September 198 the following tax was outstanding: $ Balance of 198 assessment 198 assessment 198 assessment 198 assessment 198 assessment Additional tax for late payment computed to August 198 (g) Letter dated September 198 from the taxpayer requesting an extension of time for payment of outstanding taxes. (h) A computer printout showing, inter alia, the assessed tax outstanding as at September 198 . (i) The only payment received from the taxpayer against the tax assessed in respect of the years ended 30 June 198 to 30 June 198 was an amount of $ , paid on September 198 . (j) The Guidelines laid down by the Commissioner of Taxation as set out in Taxation Ruling IT 2156 dated 6 May 1985. The reasons for the decision not to grant an extension of time pursuant to section 206 of the Act were: (k) The taxpayer in his application for an extension of time furnished no evidence to demonstrate that he would be unable to pay his outstanding tax liabilities if an extension of time was not granted or that the likely effects on the taxpayer's business of the required payment of tax would endanger or curtail the taxpayer's business. In addition the Objections were not sufficiently meritorious to conclude that they would be ultimately allowed. Accordingly, there were insufficient grounds for concluding that the taxpayer was unable to pay the tax on or before the due date notified in the notice of assessment. (l) It was considered that there were no special circumstances which warranted the granting of an extension of time to pay the outstanding taxes. | REQUEST FOR STATEMENT OF REASONS: I refer to your letter of September 198 concerning the income tax assessments for the years ended 31 December 19 and 19 . You asked for a statement under section 13 of the Administrative Decisions (Judicial Review) Act in relation to the decision not to grant an extension of time to pay the tax assessed. That statement was provided in my letter dated October 198 . This letter contains amendments to that statement and further and better particulars of the reasons for the decision. The findings on material questions of fact were: (a) On June 198 notices of assessment issued to the applicant for years of income ending 31 December 19 and 19 for income tax amounting to $ due and payable on July 198 . (b) At an interview with , Acting Deputy Commissioner of Taxation, and , Australian Taxation Office, on July 198 , and on behalf of the company advised that the assessments were disputed and would be litigated, they proposed the following payment/deferment arrangements: (i) $ to be paid by the due date; (ii) payment of the balance to be deferred pending the final outcome of the disputed assessments; and (iii) that the amount deferred be not subject to additional tax for late payment. (c) In a letter dated July 198 from , Acting Deputy Commissioner of Taxation, to Managing Director of , the applicant was requested to provide the following information in order to give further consideration to the proposal referred to in (b): (i) to supply full details of the present financial position of the applicant and to address such matters as: - lines of credit available to the applicant; - whether the applicant had any drawdown facilities at its disposal and if so, whether there is any restriction on the use of these facilities to pay taxation; - whether any financial support would be forthcoming from the parent company. (ii) if it was claimed that payment by the due date would cause severe financial hardship, to demonstrate clearly that such will be the case. (d) In a letter dated July 198 , headed "without prejudice", from to , it was advised: (i) the applicant had no current lines of credit available on terms which included an understanding that they may be used to meet income tax liabilities; (ii) the parent company had taken the attitude that the applicant should fund any income tax liability from its own resources. (e) By a further letter dated July 198 the applicant indicated its intention to lodge objections to the assessments and sought an extension of time to pay the whole of the tax liability pursuant to Section 206 until such time as the objections 'have been allowed or, if not allowed and the disallowances are referred to the Board of Review or the Supreme Court, then until such time as those references or appeals (including any proper appeal therefrom) are finally determined'. In support of the request the applicant: (i) provided further detail relating to the grounds for disputing the assessments; (ii) expressed concern with the alleged delay in the application of section 136 to assess the taxable income for the years in question; (iii) referred to its compliance with its obligations under the Income Tax Assessment Act and its level of co-operation in subsequent enquiries; (iv) advised that it would suffer financial hardship if it had to pay the full amount of tax in dispute, as - the applicant did not have cash or liquid assets to meet the liability, - the effective cost to the applicant was $ per annum if the company borrowed funds to meet the liability and was ultimately successful. A copy of the applicant's reports and financial statements for the year ended 31 December 198 were attached. (f) By letter dated August 198 the applicant was advised that the request for an extension of time to pay on the basis proposed was not granted. The applicant was referred to the policy behind the legislative changes introduced by the Income Tax Assessment Amendment (Additional Tax) Act 1982 which enacted sub-section 207(1A) as evidenced by: - an extract from the Treasurer's press release dated 10 August 1982; - an extract from the Treasurer's Second Reading Speech dealing with the amended legislation; - an extract from the explanatory memorandum which accompanied the amending legislation. The applicant was also advised that it had the option of paying the full amount of tax or paying 50 per cent of the amount due with the remaining 50 per cent being subject to late payment penalty from the original due date. If the applicant paid 50 per cent of the amount due, legal recovery action for the outstanding 50 per cent would be deferred pending resolution of the dispute. (g) On March 198 the Second Commissioner circulated a memorandum to all branches outlining the new policy guidelines for the late payment of tax. (h) On April 198 the Second Commissioner circulated a memorandum to all branches outlining policy guidelines for the collection and recovery of tax in cases of disputed assessments. The evidence or other material on which these findings were based were: (i) Notices of assessment for years of income ending 31 December 19 and 19 . (j) Notes of the interview between and of and and of the Australian Taxation Office dated July 198 . (k) The letter dated July 198 to and referred to at (c) above. (l) The letter from dated July 198 referred to at (d) above. (m) The letter from the applicant dated July 198 referred to at (e) above and the accompanying reports and financial statement for year ended 31 December 198 . (n) The press release of the Treasurer dated 10 August 1982 referred to in (f) above. (o) The Treasurer's Second Reading Speech referred to in (f) above. (p) The explanatory memorandum which accompanied the Income Tax Assessment Amendment (Additional Tax) Act 1982. (q) The memorandum from the Second Commissioner dated 8 March 1983 circulated to all Deputy Commissioners of Taxation headed "New Arrangements for Late Payment of Tax." (r) The memorandum from the Second Commissioner dated 28 April 1983 circulated to all Deputy Commissioners of Taxation headed "Income Tax : Collection and Recovery of Tax in Cases of Disputed Assessments". The reasons for the decision not to grant an extension of time under section 206 were: (s) There were insufficient grounds for concluding that the financial position or liquidity of the applicant was such that at the time of the application the applicant was unable to pay the tax on or before the due date. (t) The circumstances of the case, including the disputed taxable incomes, were not considered exceptional circumstances which warranted the granting of an extension of time for payment. (u) The circumstances of the case, particularly the fact that objections were proposed to be lodged against the assessments, and subject to the applicant agreeing to pay 50 per cent of the amount due, did warrant a deferment of legal recovery action in relation to the balance of the amount due. Yours faithfully, ( ) ASSISTANT COMMISSIONER | REQUEST FOR STATEMENT OF REASONS: I refer to your letter of December 198 concerning the income tax assessment of Pty Ltd as trustee for the Family Trust ('the Trustee') for the year ended 30 June 198 . You asked for a statement of reasons under section 13 of the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision not to grant a remission of additional tax for late payment. The findings on material questions of fact were that: (a) The only grounds stated by the Trustee as warranting a remission of additional tax for late payment were that : (i) The Trustee company was led to believe that its accountant, Mr , had requested reference to a Board of Review for review of the decision to disallow the objection for the year ended 30 June 198 and had been negotiating a settlement of tax outstanding; and (ii) The Trustee had taken reasonable steps to mitigate, or mitigate the effects of, those circumstances which contributed to the delay in the payment of the tax. (b) The circumstances did not warrant a remission of tax under sub-section 207(1A) of the Income Tax Assessment Act ('the Act'). The evidence or other material on which the findings were based were: (c) As at August 198 additional tax for late payment of primary tax for the year ended 30 June 198 was $ , . (d) Return of income for the year ended 30 June 198 . (e) Letter dated April 198 disallowing the objection dated December 198 against the assessment for the year ended 30 June 198 . (f) Letter dated August 198 which advised amount of tax outstanding and that additional tax was accruing. (g) Minute of the telephone conversation between the trustee's accountant and a Taxation Officer dated December 198 . (h) Notice under section 364(2) of the Companies (Victoria) Code issued to the registered office of the Trustee on May 198 . (i) Minute of the meeting between Mr and a Taxation Officer dated June 198 . (j) Minutes of the telephone conversation between Mr and a Taxation Officer dated June 198 and June 198 concerning the matter as to whom the adjusted distribution should be assessed. (k) The setting down for hearing of a motion for a winding-up order and its subsequent adjournment to allow payment of the tax outstanding. (l) Payment on October 198 of $ , , representing the primary tax outstanding in relation to the 198 assessment. (m) Letter dated October 198 requesting remission of additional tax for unpaid tax in relation to the assessment for the year ended 30 June 198 under sub-section 207(1A) of the Act. (n) Guidelines laid down by the Commissioner of Taxation as set out in Taxation Ruling No. IT 2091 dated 6 September 1984. The reasons for the decision not to grant remission of tax pursuant to sub-section 207(1A) of the Act. (o) Applying the Commissioner's guidelines to the circumstances of the case. (i) There were insufficient grounds for concluding that the trustee was unable to pay the tax on or before the date due and payable in the relevant notices of assessment; (ii) The trustee failed to take reasonable action to mitigate, or mitigate the effect of, the circumstances that contributed to the delay in paying the primary tax; (iii) There were no special circumstances which warranted remission of additional tax pursuant to sub-section 207(1A) of the Act; and (iv) There were no reasons which justified a departure from these guidelines. | REQUEST FOR STATEMENT OF REASONS: I refer to the representation of February 198 from concerning your income tax assessments for the years ended 30 June 198 , 198 , 198 and 198 . requested a statement of reasons under section 13 of the Administrative Decisions (Judicial Review) Act 1977 in relation to a decision not to grant your request to pay taxes outstanding by instalments. The findings of material questions of fact were: (a) The grounds stated by you in support of your application to pay by instalments were: (i) you were not aware that your previous employer had failed to deduct group tax from the salary payments to you; (ii) your high level of personal financial commitments relative to your total income has resulted in you having insufficient funds available to discharge the debt; and (iii) you own few assets that could be realised to discharge your outstanding tax liability. (b) The circumstances did not warrant the granting of your request to pay the outstanding tax by instalments under sub-section 206(1) of the Income Tax Assessment Act ('the Act'). The evidence or other material on which these findings were based were: (c) As at December 198 the following taxes were outstanding for the years ending 30 June 198 to 198 inclusive: Year Ended Primary Incorrect Return Late Payment 30 June Tax Penalty Penalty $ $ $ 198 198 198 198 (d) As at January 198 no payment had been made by you to discharge this outstanding tax liability of $ . (e) Your application dated December 198 requesting deferment of recovery action and offering to pay the debt by instalments. (f) Your letter dated December 198 requesting a reconsideration of your earlier request for deferment of recovery action and offer to pay by instalments. (g) Letter dated December 198 from requesting that the tax outstanding be paid by instalments. (h) Guidelines laid down by the Commissioner of Taxation as set out in Taxation Ruling No. IT2091 dated 6 September 1984, and Taxation Ruling No.IT 2156 dated 6 May 1985. The reasons for the decision not to grant an application to pay by instalment pursuant to section 206 of the Act were: (i) The period for payment offered was excessive. (j) Applying the Commissioner's guidelines to the circumstances of the case: (i) There were insufficient grounds for concluding that you were unable to pay the tax on or before the due date; and (ii) There were no reasons which justified a departure from those guidelines. | REQUEST FOR STATEMENT OF REASONS: I refer to your application for an order of review filed on May 198 in respect of provisional tax in the amount of $ notified for the year ended 30 June 198 . In your application you have asked for a statement under section 13 of the Administrative Decisions (Judicial Review) Act in relation to the decision to raise provisional tax for the year ended 30 June 198 , in terms of sub-section 221YDA(4) of the Income Tax Assessment Act. The findings on material questions of fact were: (a) Your income tax return for the year ended 30 June 198 that disclosed gross income of $ and returned a loss of $ . (b) The notice of assessment for the year ended 30 June 198 that issued on January 198 was based on a taxable income of $ (after allowing deductions totalling $ and increasing gross income by $ ) and was due for payment on April 198 . (c) The application for variation of provisional tax dated February 198 and a covering letter which indicated you had estimated your gross income and allowable deductions for 198 as nil. (d) The letter dated March 198 in which you were requested to review your application of February 198 . (e) The letter dated March 198 in which you rejected that approach. (f) A review of transactions, as summarised in records kept by the trustee of your bankrupt estate, on the joint account, No. at the Bank, Branch for the period 1 July 198 to April 198 revealed gross income of $ and items of expenditure similar to those claimed in the 198 return. It was estimated from this review that your gross income for the year ended 30 June 198 would be $ , and that allowable deductions would be similar to the 198 year. (g) The notice of variation of provisional tax dated May 198 and accompanying letter of explanation notified that provisional tax for the year ended 30 June 198 had been varied to $ based on an estimated taxable income of $ . The evidence or other material on which these findings were based were: (h) The return of income for the year ended 30 June 198 . (i) The notice of assessment for the year ended 30 June 198 issued January 198 , and the accompanying adjustment sheet. (j) The application to vary provisional tax dated February 198 . (k) The letter dated February 198 to the Deputy Commissioner, referred to in (c) above. (l) The letter dated March 198 , referred to in (d) above. (m) The letter to the Deputy Commissioner dated March 198 , referred to in (e) above. (n) Summaries of debits and credits to the Joint Account at the Bank, Branch, as prepared by the Trustee, Mr . (o) Notice of provisional tax dated May 198 . (p) The letter dated May 198 accompanying the notice of provisional tax. The reasons for the decision to issue a notice of provisional tax under sub-section 221YDA(4) were: (q) On the basis of your letter of February 198 you had not made a proper estimate of your taxable income for the year ended 30 June 198 . (r) Although requested to review the application dated February 198 you maintained that your estimated taxable income for the 198 year would be Nil. (s) In the light of the information from the Trustee it was considered that you had made a low estimate. It was estimated that your taxable income for the 198 year would exceed $ but the operation of sub-section 221YDA(5) limited our estimate to $ . | STATEMENT PURSUANT TO SEC. 13 OF THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977: I, , a Senior Assistant Deputy Commissioner, Australian Taxation Office, ,am an officer duly authorized to exercise, on behalf of the Deputy Commissioner, the power to grant extensions of time or permit payment to be made by instalments pursuant to Sec.206 of the Income Tax Assessment Act and to remit additional tax for late payment pursuant to Sec.207(1A) of the Income Tax Assessment Act 1936. I received a letter dated June 198 from , a firm of solicitors acting on behalf of , requesting that in the event that a decision had been made not to accede to the terms of a request for extension of time to pay assessments issued to pursuant to Sec,136 of the Income Tax Assessment Act 1936 and the Australian Double Tax Agreement, a statement be given pursuant to Sec.13(1) of the Administrative Decisions (Judicial Review) Act. I hereby make the following statement setting out my findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for my decision. Background On June 198 I received a letter from dated June 198 requesting an extension of time for payment of assessments issued to pursuant to Sec.136 of the Income Tax Assessment Act 1936 and the provisions of the Australia Double Tax Agreement, for a total sum of $ . The company further requested that the extension be granted until the date on which the Commissioner notified of his decision to allow the objections being prepared by against the assessments, or, should the Commissioner disallow the objections, the date 30 days after the decision of a Board of Review upon the reference of the objections and the Commissioner's decision thereon for review, and further, to seek the Commissioner's determination that the date for payment pursuant to that extension of time is the date from which there is computed any liability for additional tax pursuant to Sec.207 of the Act, or alternatively, the remission of any such additional tax as may become payable. On June 198 I wrote to over the name of the Deputy Commissioner, drawing attention to Income Tax Rulings 2091 and 2156, covering the general requirements for granting extensions of time for payment of tax and remissions of additional tax or late payment. In addition attention was drawn to the relevant provisions of the Income Tax Assessment Act 1936 relating to the remission of additional tax for late payment. On July 198 I received the letter from dated June 198 requesting, in the event that a decision had been made against any of the matters raised by in their letter of June 198 , a statement pursuant to Sec.13(1) of the Administrative Decisions (Judicial Review) Act be provided. On July 198 I again wrote to over the name of the Deputy Commissioner confirming the decision not to accede to the taxpayer company's request and setting out reasons for that decision. Findings on Material Questions of Fact 1 The amount owing in respect of the abovementioned assessments (i.e. $ ) remained unpaid at June 198 - the date on which the assessments were due and payable and the date on which the extension request lodged by on June 198 was considered. 2 In support of the request for extension, advised that the taxpayer proposed to object against the assessments under consideration but at the time their request was considered there was no record of objections having been lodged. Consequently the request was considered with reference to the provisions of Sec.204, Sec.206 and Sec.207 of the Income Tax Assessment Act 1936 and the Commissioner's guidelines relating to non-disputed assessments as set out in Income Tax Ruling 2091. 3 I was not satisfied on the basis of statements made in support of the request for extension that the taxpayer was unable to pay its tax on or before the due date. 4 In the circumstances I could not reach a conclusion that the taxpayer company satisfied the Commissioner's guidelines as set out in Income Tax Ruling 2091, for the granting of extension arrangements, nor was any reason apparent for the exercising of a discretion of depart from those guidelines in order to grant the extension of time sought. 5 It was considered, however, that in the event of objections being lodged against the assessments, it would be appropriate to consider a further extension request in terms of the guidelines covering genuine disputes (Income Tax Ruling 2156) whereby recovery action would be deferred upon payment of 50% of the amount in dispute with the balance being subject to additional tax for late payment from the original due date. Evidence or Other Material on Which My Findings Were Based In making my decision I had regard to the following - . The letter dated June 198 written on behalf of by . . An extract from the taxpayer's computer record showing, inter alia, the relevant tax outstanding at June 198 . . Secs. 204, 206 and 207 of the Income Tax Assessment Act 1936. . Income Tax Rulings 2091 and 2156. Reasons for My Decision The reasons for my decision were that - . There was insufficient information for concluding that the financial position of the company was such that the company was unable to pay its tax on or before the due date. . The circumstances of the case, including the fact that the company proposed to lodge objections against the assessments in question, were not considered exceptional circumstances which warranted granting an extended date due and payable for the purposes of additional tax pursuant to Sec.207 of the Income Tax Assessment Act 1936 nor were there sufficient grounds stated for the remission of additional tax that may become payable. No decision had been made to exact payment of tax due and payable as it was considered appropriate to defer consideration of further action pending lodgment of objections against the disputed assessment. SENIOR ASSISTANT DEPUTY COMMISSIONER


Legislative references: AD(JR), s.13
Case references: - Ahern v D.F.C. of T. 83 ATC 4698 17 ATR 807
Subject references: STATEMENT OF REASONS REASONS FOR DECISION