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The Administrative Appeals Tribunal has decided that the Tribunal has jurisdiction to review the Commissioner’s decision to disallow an objection against the Commissioner’s decision not to make a determination under s 292-465(1) of the Income Tax Assessment Act 1997 (Cth). That section empowers the Commissioner to make a determination that a specified amount of a taxpayer’s non-concessional superannuation contributions for the relevant year be disregarded.

In this case, the taxpayer applied for a determination, but the Commissioner decided not to make one. The taxpayer objected to that decision, and the matter went to the Tribunal for a preliminary decision on the question whether the Tribunal has jurisdiction in relation to the taxpayer’s review application. The case was funded under the ATO’s Test Case Litigation Program, but limited to the question of jurisdiction.

The Tribunal found that the ordinary meaning conveyed by the text of s 292-465(9)(a), as amended in 2010, leads to a result that is manifestly absurd. The paragraph provides that a person may object only “on the ground that you are dissatisfied with a determination that you applied for under this section”. The ordinary meaning conveyed by the expression “a determination that you applied for under this section” is a determination in the terms that the person applied for. But a person would never be dissatisfied if the Commissioner made the determination that the person asked for. So, if the words were given their ordinary meaning, the only taxpayers entitled to object could not do so, because they would not be dissatisfied with the outcome, and those who were dissatisfied would not have a right to object despite that dissatisfaction.

In the circumstances, the Tribunal decided that it could have recourse to extrinsic material to ascertain the meaning of the provision. The Explanatory Memorandum to the Superannuation Legislation Amendment Bill 2010 made it clear that the provision should be interpreted so as to grant a right to object where a person is dissatisfied with the Commissioner’s determination or the Commissioner’s decision not to make a determination.

The result was that the Commissioner’s decision not to make a determination was a decision against which the taxpayer could, as he did, object. It followed that the Commissioner could, as he did, disallow the taxpayer’s objection. The decision to disallow the objection was a “reviewable objection decision” for the purposes of s 14ZZ(1) of the Taxation Administration Act 1953 (Cth), and the Tribunal had jurisdiction to review that decision.

Re Ward and FCT [2015] AATA 138 (Deputy President S E Frost, Dr James Popple, Senior Member, 11 March 2015).


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