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26 Jun 14 Application to re-open Tribunal proceedings refused - BQRW

The Administrative Appeals Tribunal has refused to re-open proceedings in a review of taxation objection decisions, after the hearing had concluded but before the decision was given. The Tribunal held that it was not under an unqualified obligation to re-open, nor should it exercise its discretion to do so.

The Commissioner had issued amended assessments to the taxpayers in this case, on the basis that certain dealings they had had with an offshore bank were found to be a sham. The taxpayers applied to the Tribunal for review of the Commissioner’s decisions, and the Tribunal had conducted a hearing and reserved its decision.

The taxpayers then applied to have the matter re-opened, so as to receive evidence from one further witness, a former director of the offshore bank. The taxpayers also identified a further issue which they wanted to raise in support of the application to re-open, namely, that other taxpayers in similar circumstances had allegedly been treated differently by the Commissioner.

The taxpayers argued firstly that the Tribunal, as an administrative decision-maker, is under an unqualified obligation to take into account any relevant material that is provided to the Tribunal before it makes its final decision. Secondly, if that argument were to fail, the taxpayers argued that, as a matter of discretion, and by reference to the principles applicable to curial decision-making, the Tribunal should grant leave to allow additional evidence to be introduced.

The Tribunal decided firstly that it is not under an unqualified obligation to re-open proceedings whenever a party asks it to do so. Case law makes it clear that further material will not always be accepted after a hearing, but it may be accepted as a matter of discretion. The party seeking to rely on further material should first seek leave. And then the suggested approach of the Tribunal, if leave is granted, is that it should “ordinarily” have regard to that material, in the absence of a good reason not to. The use of the word “ordinarily” introduces a further qualification beyond the requirement that leave be granted, which confirms that the Tribunal retains a discretion to reject, or disregard, the material on reasonable grounds.

Secondly, as to that discretion, the ultimate question is whether, as a matter of fairness, the applicants’ request should be granted.

The Tribunal identified a number of factors to be taken into account in considering whether to exercise the discretion. These include:

  • whether there is fresh evidence
  • whether there has been an inadvertent error
  • mistake or misapprehension of fact
  • mistake or misapprehension of law
  • the need for finality of litigation
  • the absence of an explanation
  • whether the applicants have previously made a deliberate choice not to adduce the relevant evidence
  • whether it would be unfair to allow re-opening
  • the Commissioner’s entitlement to know all the evidence he has to meet
  • prejudice in terms of delay
  • consequential costs, and
  • the history and development of the dispute and the history of the proceedings in the Tribunal.

Having examined the matter in the light of these factors, the Tribunal declined to exercise its discretion to re-open the matter.

Re BQRW and FCT [2014] AATA 410 (S E Frost DP, 24 June 2014).

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