[2012] AATA  598

Division	TAXATION APPEALS DIVISION	
File Number(s)	2012/1145	
Re	Peter Wray-McCann	
	APPLICANT	
And	Commissioner of Taxation	
	RESPONDENT	

Decision

Tribunal	Deputy President S E Frost
	
Date	6 September 2012  	
Place	Sydney	
Application dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975.
......[sgd]..................................................................
Deputy President S E Frost

Catchwords
TAXATION – jurisdiction of the Tribunal – application to review a decision of the Commissioner – explanation of standard pathway for reviewable decisions of the Commissioner to be reviewed by the Tribunal – reference to alternative pathways – applicant unable to identify an enactment that provides for review by the Tribunal – application dismissed for lack of jurisdiction

Legislation
Administrative Appeals Tribunal Act 1975 – s 25
Taxation Administration Act 1953 – Part IVC – s 14ZL, 14ZZ; Schedule 1 – s 359-60(1)
Income Tax Assessment Act 1936 – s 175A(1), 177F(2G), 177F(7), 202BA, 202BE, 202F(1)

Cases
Qantas Airways Limited and Deputy Commissioner of Taxation (WA) [1979] AATA 40

REASONS FOR DECISION

Deputy President S E Frost

6 September 2012

Introduction
1.	Mr Wray-McCann is in a long-running dispute with the Commissioner of Taxation.  
2.	Earlier this year he applied to the Tribunal for review of a decision which he described in the following way:
The ATO, by its employee Jill Gatland wrongfully refused to make application to:
1.	The Local Court to have my committal to the District Court set aside.
2.	The District Court to have my conviction set aside.
3.	To bear the costs of the applications.
3.	The conviction he is referring to is in respect of alleged contraventions of the Financial Transactions Reports Act 1988 (FTR Act). 
4.	The prosecution under the FTR Act was apparently initiated by the Commissioner, and it is that fact that aggrieves Mr Wray-McCann.  In particular, he is aggrieved because of what he sees as inconsistent messages he is receiving from the Commissioner.  On the one hand, the Commissioner instituted the prosecution under the FTR Act.  On the other hand, the Commissioner repeatedly tells Mr Wray-McCann that he, the Commissioner, does not have the general administration of the FTR Act.  Mr Wray-McCann does not see how both sets of circumstances can stand side by side.  
5.	He wants something done about what he has variously described as the “illegal and misleading conduct” of the Commissioner and his officers, and “this sustained unlawful conduct”.  At their most virulent, his complaints have referred to:
•	“the un[s]worn hearsay statements of a number of ATO employees who have been demonstrated to be either liars, obfuscators, misleaders, behind the scenes manipulators, confidence tricksters, or pretenders to a level of authority which they did not possess”; and
•	“fraudulent distorter’s (sic) of the unambiguously clear Commonwealth Prosecutions Policy of the Commonwealth (sic)”.
6.	The Tribunal doubted that it had jurisdiction to entertain this particular application.  The District Registrar wrote to Mr Wray-McCann on 21 August 2012, inviting him to explain, within 14 days, why he thought the Tribunal had power to review this decision.  He responded by email on 31 August 2012 with an eight-page written submission in support of his contention that the Tribunal has jurisdiction.
7.	It is clear beyond argument that the Tribunal has no jurisdiction.  I will explain why.
The Tribunal’s power to review decisions
8.	The Tribunal’s power to review decisions stems from s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).  Subsection 25(1) says that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.  (An “enactment” is defined relevantly as “an Act” – which means an Act passed by the Parliament of the Commonwealth: see s 38(1) of the Acts Interpretation Act 1901.)  
9.	That does not mean that all decisions made under any Commonwealth Act are reviewable.  What it does mean is that a decision is reviewable by the Tribunal if a Commonwealth Act says that it is: see for example Qantas Airways Limited and Deputy Commissioner of Taxation (WA) [1979] AATA 40.
Is the decision reviewable?
10.	The decision about which Mr Wray-McCann complains is the decision, made by an officer of the Australian Taxation Office (ATO), to refuse to do the things referred to in [2] of these reasons.  For convenience I refer to this decision as the Refusal Decision.  Mr Wray-McCann submits that the Refusal Decision is reviewable.  
11.	His submission is based, primarily, on his analysis of s 14ZL of the Taxation Administration Act 1953 (TAA).  Section 14ZL, which is in Part IVC of the TAA, provides as follows:
(1)	This Part applies if a provision of an Act or of regulations (including the provision as applied by another Act) provides that a person who is dissatisfied with an assessment, determination, notice or decision, or with a failure to make a private ruling, may object against it in the manner set out in this Part.
(2)	Such an objection is in this Part called a taxation objection. 
12.	Mr Wray-McCann notes the reference in s 14ZL(1) to the words determination and decision.  He notes that by its express terms s 14ZL is not confined solely to matters of assessment.  He submits that the Refusal Decision is either a determination or a decision.  He submits that a number of other determinations or decisions were made by various ATO officers during the period September 2005 to December 2010.  He submits that the meanings of the words in s 14ZL, which include “determination” and “decision”, are:
… sufficiently wide in scope to attract the jurisdiction of the Tribunal … in relation to my Application with respect to a number of determinations, or alternatively, a number of decisions made by ATO employees in the name of the [Commissioner].
13.	His conclusion is that the nominated actions of the ATO over a period of six and a half years (starting in September 2005, and culminating in the Refusal Decision in March 2012) are reviewable by the Tribunal, because of the provisions of s 14ZL.
14.	That submission is not well founded.
15.	Section 14ZL is not concerned with the Tribunal’s jurisdiction; it performs an entirely different role.  Its role is to act as a gatekeeper to Part IVC of the TAA.  Although its words are straightforward, its structure is unusual.  It is actually a statement of a logical principle.  It states a premise and a conclusion.  Unusually, it puts the conclusion before the premise.  But it simply says this:
If … (the premise)	… then … (the conclusion)	
…  a provision of an Act … provides that a person who is dissatisfied with an assessment [or some other action of the Commissioner] may object against it in the manner set out in this Part	Part IVC of the TAA applies	
16.	The first task is to establish the premise.  This involves a search for a “provision of an Act” that says that you can object “in the manner set out in [Part IVC]”.  
17.	An example of a “provision of an Act” that says you can do that, is s 175A(1) of the Income Tax Assessment Act 1936 (ITAA 1936), which deals with an objection against an income tax assessment.  It says this:
A taxpayer who is dissatisfied with an assessment made in relation to the taxpayer may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.
18.	Note the congruence in language between the premise and s 175A(1).  
19.	There are other provisions that use virtually identical language to that set out in the premise, for example:
•	s 177F(2G) of the ITAA 1936, dealing with an objection against a determination that a capital loss was not incurred by a taxpayer; 
•	s 177F(7) of the ITAA 1936, dealing with an objection against a decision in relation to a taxpayer’s request for a determination.
20.	A further example, which uses a different, more modern drafting style, but which is nevertheless consistent with the premise, is s 359-60(1) in Schedule 1 to the TAA, dealing with an objection against a private ruling.  It provides:
You may object against a *private ruling that applies to you in the manner set out in Part IVC if you are dissatisfied with it.
21.	Those are all provisions that establish the premise set out in [15] of these reasons.  In any of those cases, the conclusion must follow: in other words, if you can object, and you do, then Part IVC of the TAA applies.
22.	Part IVC is essentially a code that prescribes how objections are dealt with.  Among other things, it sets out time limits for lodging objections (s 14ZW).  It imposes on the Commissioner a duty to make a decision on the objection (s 14ZY); the Commissioner’s decision is called an “objection decision”.  It also provides that, if you are dissatisfied with the objection decision, then in most cases, you can “apply to the Tribunal for review of the decision”: s 14ZZ(a)(i).  It is this provision, in combination with s 25 of the AAT Act, that grounds the Tribunal’s jurisdiction.
23.	This pathway, through Part IVC, is the standard pathway for applications to find their way to the Tribunal in respect of taxation decisions.  The pathway involves the following steps:
•	Identification of the specific action of the Commissioner with which you disagree;
•	Identification of an entitlement to object against that action;
•	Lodgment of an objection;
•	Making of an objection decision by the Commissioner;
•	Application to the Tribunal for review of the objection decision.
24.	That standard pathway is not the only one, but it is the most common.  By way of contrast, there are some decisions of the Commissioner that are directly reviewable by the Tribunal, such as:
•	a decision refusing an application for the issue of a tax file number under s 202BA of the ITAA 1936; 
•	a decision to cancel a tax file number under s 202BE of the ITAA 1936.
25.	But the reason why they are reviewable directly, instead of having to go down the Part IVC pathway, is because s 202F(1) of the ITAA 1936 says so.  It specifically provides:
Applications may be made to the Tribunal for review of the following decisions …
and then sets out a list of decisions including those just referred to.  In this way, s 202F(1), in combination with s 25 of the AAT Act, grounds the Tribunal’s jurisdiction. 
26.	At a directions hearing on 21 August 2012, the Tribunal informed Mr Wray-McCann that it was asking him to identify an enactment that provides for Tribunal review of the decision about which he complains.  He has nominated s 14ZL of the TAA but, as I have explained above, that is not a provision that is concerned with Tribunal reviews.  In an appropriate case, s 14ZZ provides the Tribunal with jurisdiction to review decisions, but that can only be after the other Part IVC steps have been undertaken: see [23] above.
27.	The submission in relation to s 14ZL must be rejected.
28.	Mr Wray-McCann raises alternative submissions, but they are no more capable of succeeding than the first.  
29.	One submission calls upon “the duty of the Tribunal to make appropriate orders correcting the illegal and misleading conduct of the [Commissioner] and his employees”.  It is supported by contentions that:
•	“the Tribunal has a duty, and an inherent jurisdiction, to make orders to correct any breach of the law made by the [Commissioner], or any other Commonwealth Agency, when the illegal conduct is staring the Tribunal in the face”; and
•	“the Tribunal is bound to apply the principles of procedural fairness and natural justice in the same way as any Court, Tribunal, or other quasi-judicial body in Australia”.
30.	The first contention is totally without merit.  The Tribunal has no inherent jurisdiction.  It has the jurisdiction given to it by statute, nothing more and nothing less.
31.	The second contention is correct, but it does not assist Mr Wray-McCann in circumstances where the Tribunal’s jurisdiction is not enlivened in the first place.
32.	A final submission is that the Tribunal “should refer the conduct of the ATO employees involved, and the facts of these matters to the Commonwealth Attorney General, the Australian Federal Police and the Commissioner of Taxation”.  No specific head of power to make such a referral is cited, although the plea is accompanied by the assertion that “this sustained unlawful conduct … should not be allowed to stand unchallenged, because it is an appalling example of unlawful Commonwealth public administration”.  Mr Wray-McCann, who has a law degree, also does not explain how or why he considers that it might be appropriate for an administrative tribunal such as the AAT to examine alleged unlawful activity by Commonwealth officers in relation to a criminal prosecution.
Decision
33.	Mr Wray-McCann, having been notified by the District Registrar that the decision of which he complains does not appear to be reviewable by the Tribunal, has been unable to show, within the prescribed time of 14 days, that the decision is in fact reviewable.
34.	Therefore, under s 42A(4) of the AAT Act, I dismiss the application without proceeding to review the decision.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Frost.	
........[sgd]................................................................
Associate
Dated  6 September 2012

Dealt with on the papers	 	
Applicant	In person	
Counsel for the Respondent	Ms J Gleeson	
Solicitors for the Respondent	ATO Legal Services