The AAT has decided that it had the jurisdiction to make a decision even though the applicant died before the publication of the decision.

The taxpayer had been partially successful in avoiding ‘Luxury Car Tax’ (LCT) in the earlier decision of Mavris v CofT [2018] AATA 1825, and the Commissioner wanted to treat the decision as a nullity. The Taxpayer died between the conclusion of the hearing (2 March 2018) and the publication of the relevant decision (19 June 2018).

In this earlier decision, the taxpayer (a car dealer) supplied 3 luxury cars: a Mercedes, a McLaren and a Bentley. Those supplies were clearly subject to the LCT, save for an exemption which the taxpayer claimed, namely ‘quoting’ for the sales – meaning ‘quoting an ABN’ (see s5-10(2)(a) & s27-1 of the A New Tax System (Luxury Car Tax) Act 1999 (Cth) – “LCT Act”). By this means, dealers can sell cars between them, without incurring the tax. The taxpayer produced invoices ‘quoting’ his ABN on the sale of two of the cars (avoiding the tax on them) but failed to produce an invoice for the sale of the third car and failed to avoid the tax on that sale.

The Commissioner argued that the AAT had no jurisdiction to review the decision in question, absent an appropriate person being joined to the proceedings, and should therefore treat its decision as not having been made.

The AAT noted another case: In Re Bates and Secretary, Department of Employment [2016] AATA 250 (Re Bates). Mr Bates had applied for review of a decision made by a delegate of the Secretary of the Department of Employment, regarding an advance he claimed under the Fair Entitlements Guarantee Act 2012, but died before the matter could be heard by the Tribunal. His son advised that he and his mother would like to continue with the application. The AAT (in this case) noted [at para 23]:

The Tribunal decided the personal representative of the late applicant, or a person in a like position in relation to the late application, is a person whose interests are affected by the decision under review and who may apply to be joined as a party. In other words, the Tribunal effectively decided that the administrative review proceedings should continue.

There was no decided authority, though, of what was to be done when all the steps of the hearing had occurred, by the time the Applicant died. In this case, the AAT noted that:

  • the applicant had been given the opportunity to present his case, including the giving of oral evidence.
  • Written submissions had been provided after the hearing, in accordance with an agreed timetable.
  • The AAT had reserved its decision and there was nothing further for the parties to do.

The AAT decided that, as the Applicant Taxpayer had done everything required of him, but wait for the AAT’s decision to be published, it would be unnecessary and pointless to treat the decision as no decision at all. Accordingly, the AAT said the decision should be taken to be valid (unless set aside in separate proceedings).

In reaching this decision, the AAT also noted, that whilst its proceedings were not judicial, the Federal Court rules reached a similar conclusion, which added support to her view. The AAT noted [at para 30] that:

For example, under Rule 30.24 of the Federal Court Rules 2011(Cth), it is stated that “if a party dies after the hearing of the proceeding has concluded, the Court may still proceed to give judgment and an order be made for the entry of the judgment”.

(Mavris v CofT [2018] AATA 4130, AAT, Lazanas SM, 31 October 2018.)

[LTN 216, 8/11/18; Tax Month – November 2018]

FJM 27.11.18

 

CPD questions (answers available)

  1. Did the taxpayer die after the conclusion of the LCT hearing and submissions and before the AAT published its decision?
  2. Was the taxpayer partially successful?
  3. Did the Commissioner want to treat the decision as it if hadn’t been made (a nullity)?
  4. Was there an AAT case that decided that an applicant’s statutory right, to have a decision reviewed, by the AAT, could proceed, with other persons (like legal personal representatives) being persons relevantly affected by the decision and persons who could discharge the tasks involved in running an application?
  5. What was the name of that case?
  6. Was there any decided case on what is to happen when an applicant dies after the case concludes, and there is nothing more for the Applicant to do, other than await the decision?
  7. Did the AAT decide that it would be pointless to decide that its prior decision was a nulity?
  8. Did the Federal Court Rules have any provision to similar effect?
  9. Which rule was that?

 

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