Gooley and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 489 (15 July 2011)

Last Updated: 15 July 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 489

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/1018

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CORAL GOOLEY

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Dr P McDermott, RFD, Senior Member

Date 15 July 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.................[Sgd].............................
Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and entitlements – Family Tax Benefit – failure to lodge tax returns within required time – whether applicant entitled to supplementary or further payments - decision under review affirmed

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 28

REASONS FOR DECISION

15 July 2010

Dr P McDermott, RFD, Senior Member

INTRODUCTION

1. Mrs Carol Gooley (the applicant) has sought a “top up” of family tax benefit (FTB) for the 2007/2008 tax year. I have decided that she cannot be paid such a payment. I give my reasons for my decision.

BACKGROUND

2. In the 2007/2008 financial year the applicant was in receipt of both FTB Part A and FTB Part B. From 1 July 2007 these payments were based on an estimated income of the applicant and her husband (Mr Gooley) that was disclosed to Centrelink. It is not necessary for me in these reasons, which are a matter of public record, to mention the amount of the estimated income which is set out in a document which was tendered in evidence (Exhibit B). This estimated income was revised from 13 July 2007; the amount of this revised income is stated in another document which was tendered in evidence (Exhibit C).
3. It is not in issue that Centrelink sent a letter to the applicant on 4 June 2009 in which she was advised that both she and her partner needed to lodge their tax return for the 2007/2008 financial year by 30 June 2009 or that she would have to repay any FTB received for that particular financial year. She was also advised that if she did not respond by 30 June 2010 that she would not be eligible for any further supplement payments. The letter also advised the applicant in the following terms:

“If you need to lodge a tax return
If you and/ or your partner need to lodge a tax return for the 2007/2008 financial year and you do not use a tax agent, you need to lodge now. If you use a tax agent, you should make sure you give them all necessary documentation early enough to help them lodge your return on time. If you need to lodge a tax return, don’t miss out on your entitlement. Contact the Australian Tax Office on 13 2861 and get advice on what assistance is available to help you lodge your tax return.”

4. It is not in issue that on 30 June 2009 the applicant lodged her tax return for the 2007/2008 financial year. It is also not in issue that it was not until 13 October 2010 that Mr Gooley lodged his tax return for the 2007/2008 financial year which, for the purposes of this application, is the cancellation income year. These respective dates of lodgement are recorded in internal Centrelink documents that were admitted in evidence (Exhibit D).
5. Mr Gooley gave evidence before me that he ran into financial difficulties because of illness. He advised his accountant that he needed to lodge his tax return for the 2007/2008 financial year by 30 June 2010. Mr Gooley also provided his accountant with correspondence from Centrelink which mentioned that further supplementary payments of FTB could not be made until his tax return for the 2007/2008 financial year had been lodged by 30 June 2010. The tenor of the evidence of Mr Gooley was that he was advised by his accountant that FTB could be paid even if his tax return for the 2007/2008 financial year was lodged after 30 June 2010. Mr Gooley also stated that his accountant advised him that FTB was paid in the case of tax returns that were lodged some 5 years late.
6. On 13 November 2009, Centrelink made a decision to raise and recover a FTB non lodger debt for the 2007/2008 year. On that date a letter was sent to the applicant which contained the following explanation:

“... you and/or your partner have still not lodged you income tax return or told us that you don’t have to lodge one for 2007-2008. This means we have not been able to check that you received the correct amount of Family Tax Benefit for this year.”

7. The assessed income of the applicant and Mr Gooley for the 2007/2008 financial year was less than the previous estimate of the income for the couple (Exhibit D). Had Mr Gooley lodged his tax return for the 2007/2008 financial year by 30 June 2010, the applicant would have been paid an FTB supplementary payment of $5,991.42 for that financial year. This supplementary payment was calculated on the basis that for that financial year the applicant was entitled to $7,217.52 less $1,226.10 which she had already been paid.
8. On 29 October 2010, a reconciliation of the entitlement of the applicant occurred. A decision was then made that the non lodger debt did not exist but that she was not entitled to a supplementary payment of FTB for the 2007/2008 financial year.
9. On 11 November 2010, the applicant requested a review of the decision. On 12 November 2010, a Centrelink officer affirmed the decision. Later on 10 December 2010, an authorised review officer affirmed the decision which was also later affirmed by the Social Security Appeals Tribunal on 24 February 2011.
10. On 16 March 2011, the applicant made an application for review of the decision by this Tribunal.

ISSUE FOR RESOLUTION

11. I have to decide whether the applicant is entitled to be paid any supplementary or further payment of FTB for the 2007/2008 financial year.

RELEVANT LEGISLATION

12. The entitlement of the applicant to FTB is contained in the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act).

CONSIDERATION

13. Section 28(1) of the Administration Act provides for the variation of instalment and part period entitlement determinations where a claimant or the claimant’s partner is required to lodge a tax return and has not lodged a tax return by a particular time. In this case Centrelink advised the applicant on 4 June 2009 that both she and her partner needed to lodge their tax return by 30 June 2009 or that she would have to repay any FTB received for the particular financial year. As both the applicant and her partner did not comply with this requirement, by virtue of the operation of s 28(2) of that Act the claimant is not and never was entitled to FTB for that financial year.
14. Subsection 28(3) of the Administration Act provides that if a claimant or claimant’s partner’s tax returns are later lodged two years after the cancellation income year then the Secretary must again vary the determination so that it has the effect that, for the cancellation days, the claimant is entitled to be paid the lesser of:

(i) the recalculated amount; and
(ii) the amount that the claimant was entitled to be paid before the variation under subsection (2) was made.

This provision is applicable as the tax return of Mr Gooley was required to be lodged by 30 June 2010 and was in fact lodged on 13 October 2010, more than two years after the cancellation income year.

15. I am of the opinion that under s 28(3) the entitlement of the applicant to FTB for the 2007/2008 financial year is what she has already been paid and that she is not entitled to any supplementary payment.

DECISION

16. I affirm the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ...................[Sgd]..........................................................

Associate

Date/s of Hearing 29 June 2011

Date of Decision 15 July 2011

The Applicant was represented by her husband

Solicitor for the Respondent Ms Jasmine Forsyth, departmental advocate