The AAT has exercised its powers to summarily dismiss an application by a taxpayer who sought to argue that he was carrying on a personal service business in respect of horticultural consultancy service provided by his family company to a related company. It did so essentially on the basis that the taxpayer was seeking to re-litigate a matter that had previously been decided against him in AAT Case [2009] AATA 906. In that case, the AAT determined that the income derived by the family company was personal services income of the taxpayer and, therefore, should have been included in his assessable income. In doing so it found that the company was not a personal service business as no personal service business determination was in place and it neither satisfied the “results” test or the 80% “unrelated clients” test.
Before the AAT in the current matter, the taxpayer sought to argue that he satisfied the “business premises” test. However, in refusing to entertain the taxpayer’s application the AAT accepted the Commissioner’s claim that the taxpayer was seeking to re-litigate issues that have already been determined against him. It did so on the basis that the taxpayer had been unsuccessful in the earlier proceedings in demonstrating that the Commissioner’s assessments were excessive. Moreover, the AAT found that having had the opportunity to put his whole case forward at that time – including the application of the business premises test – and having not done so, the taxpayer was in effect estopped from raising the issue now.
(AAT Case [2012] AATA 439, Re Fayle and FCT, AAT, Ref No 2012/0357-0359, Hack SC, 12 July 2012.)
[FJM Note: If the years are different, then this summary dismissal of the taxpayer’s case is quite wrong.]
[LTN 135, 16/7]