Following the decision in Rigoli v FCT [2014] FCAFC 29, in which the Full Federal Court unanimously confirmed that the taxpayer had failed to discharge the burden of proving that the default assessments issued to him, under s 167 of the ITAA 1936, for the 1994 to 2001 income years were excessive, the AAT on remittal of the matter to it for redetermination has again confirmed that the taxpayer had not discharged the onus of proving that the assessments were excessive.

The matter had originally been remitted to the AAT for redetermination by the Federal Court from the decision in FCT v Rigoli[2013] FCA 784 which involved the question of the effect of the taxpayer’s “concession” to accept the Commissioner’s estimation of his income, but leaving open for determination the issue of his claims for the depreciation expenses.

Before the Full Court, the taxpayer unsuccessfully argued that the AAT’s decision to accept the concession had engaged the powers in s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) and that, as a result, the AAT wrongly exercised a “merits review” as opposed to a “judicial power”. Nevertheless, the Full Court dismissed the Commissioner’s cross-appeal to remit the matter to the AAT for redetermination.

On remittal, the AAT again found that the taxpayer had not discharged the relevant onus of proof . In doing so it stated that, in the absence of an agreement to confine the issues in dispute, the taxpayer had to prove, on the balance of probabilities, that his actual taxable income from all sources was less than the amount assessed by the Commissioner.

The AAT further found that, in terms of s 43 (1) of the AAT Act, its role was to exercise all of the powers conferred on the Commissioner for the purposes of reviewing the objection decision and that this did not involve a review of the way in which the Commissioner’s assessment was made as the onus was on the taxpayer to proving the assessment was excessive.

(Re Rigoli and FCT [2015] AATA 169, AAT, File Nos: 2009/0142 – 2009/0149, Fice SM, 24 March 2015.)

[LTN 58, 26/3/15] [IT 26/3/15]

s43(1) of the AAT Act

(1)  For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)      affirming the decision under review;

(b)      varying the decision under review; or

(c)      setting aside the decision under review and:

(i)      making a decision in substitution for the decision so set aside; or

(ii)     remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.