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27 Aug 09 Departure authorisation certificate refused - Lui

The AAT has upheld the Commissioner's decision not to grant the taxpayer, who was the subject of a a departure prohibition order, a departure authorisation certificate on humanitarian grounds under s 14U of the Taxation Administration Act 1953. It was accepted by the Commissioner that there were humanitarian grounds which could justify the grant of a departure authorisation certificate if other conditions for the grant of the certificate were satisfied, including the giving of a security for the taxpayer’s return to Australia that was satisfactory to the Commissioner.

Section 14U(1)(b)(ii)(A) provided that "if the person is unable to give such security, the Commissioner is satisfied that: (A) a departure authorization certificate should be issued in respect of the person on humanitarian grounds..."

The taxpayer had offered security over a property, the value of which was but a fraction of the tax allegedly due. This security had been rejected by the Commissioner, whos suspected that he had not fully disclosed his assets. The taxpayer argued that, as a result of the rejection, he was "unable to give such security" and, accordingly, was entitled to the departure authorisation certificate. This argument was rejected by the AAT which stated, at para 26:

" seems most unlikely that departure in the absence of satisfactory security would be contemplated in a case of refusal to provide security or an unsuccessful negotiation about what would constitute satisfactory security. The provisions of s 14U(1)(b)(ii)(A) and (B), identify exigent circumstances which might justify an exemption from an intentionally strict regime. They do not contemplate, however, the reservation of any bargaining power to a person seeking to depart concerning either the tax liability or the necessity for adequate security, if it could be made available. I think it is clear that the legislative expectation is that departure from Australia, if s 14U(1)(a) is not satisfied, will normally only occur under s 14U(1)(b)(i), on condition of provision of adequate security, and that otherwise, even if there are humanitarian grounds, departure will only be permitted if a person does not have the means to comply with that primary requirement."

Lui and FCT [2009] AATA 626 (AAT, Justice Buchanan P, 21 August 2009).

For a copy of the decision, go here


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