To provide taxpayers with objection rights, an amending Act was passed (before the hearing of the appeal to the Full Federal Court) inserting sub-section 292-465(9) as follows:
(9) To avoid doubt:
(a) you may object under section 292-245 against an *excess contributions tax assessment made in relation to you on the ground that you are dissatisfied with a determination that you applied for under this section; and
(b) for the purposes of paragraph (e) of Schedule 1 to the [ADJR Act] the making of a determination under this section is a decision forming part of the process of making an assessment of tax under this Act.
It is therefore surprising that in Hope and Commissioner of Taxation [2014] AATA 877, the Tribunal again expressed doubt about taxpayers’ rights to object against a decision of the Commissioner under s 292-465.
The Tribunal’s decision turned in part upon the language of s 292-465(1), which provided that on the taxpayer’s application, ‘the Commissioner may make a written determination’ to disregard or re-allocate all or part of the taxpayer’s contributions. The Tribunal suggested (at [36]) that since the grounds for the objection provided for in s 292-465(8)(a) were dissatisfaction with a determination, there may be no right of objection in the case of a negative decision by the Commissioner, because there would be no ‘determination’ to disregard or re-allocate – only an absence of a determination.
The Tribunal’s reasons pick up an ambiguity in the language of s 292-465. The concept of a ‘determination’ might be thought to refer to the process of decision-making or the product of that process, or both. With respect, the permissive construction is to be preferred. It would seem a perverse outcome if a taxpayer who had failed in their application under s 292-465 had no objection rights whilst a taxpayer who had succeeded in part could object if they remained dissatisfied. The result suggested by the Tribunal’s dicta would give s 292-465 a construction which frustrates the obvious intent of the amending provisions, namely to confer objection rights upon taxpayers.
