GSLL and Commissioner of Taxation (Taxation) [2016] AATA 954 (29 November 2016) Commissioner of Taxation. Commissioner of Taxation

Transcription

1 GSLL and Commissioner of Taxation (Taxation) [2016] AATA 954 (29 November 2016) Division TAXATION & COMMERCIAL DIVISION File Number(s) 2015/ Re GSLL APPLICANT And Commissioner of Taxation RESPONDENT File Number(s) 2015/ Re MKDZ APPLICANT And Commissioner of Taxation RESPONDENT File Number(s) 2015/ Re ZZSW APPLICANT And Commissioner of Taxation RESPONDENT Commonwealth of Australia 2016

2 DECISION Tribunal Deputy President Dr P McDermott RFD Date 29 November 2016 Place Brisbane I affirm the decisions under review....[sgd]... Deputy President Dr P McDermott RFD PAGE 2 OF 25

3 CATCHWORDS TAXATION AND REVENUE applicants liable to administrative penalty for failure to lodge FBT returns base penalty amount of 75% administrative penalty not remitted in part or whole decisions affirmed under review LEGISLATION Fringe Benefits Tax Assessment Act 1986 (Cth) ss 68, 70, 72, 90 Taxation Administration Act 1953 (Cth) s 14ZZK, Sch 1, ss (1A), (3), (6), (1) CASES Sanctuary Lakes Pty Ltd v Commissioner of Taxation (2013) 212 FCR 483 SECONDARY MATERIALS Practice Statement Law Administration 2014/4 REASONS FOR DECISION Deputy President Dr P McDermott RFD 29 November 2016 INTRODUCTION 1. This is a review of the decisions of the Commissioner of Taxation ( the respondent ) to disallow the objections of three companies, GSLL, MKDZ and ZZSW ( the applicants ), in relation to the respondent s decisions concerning the remission of administrative penalties imposed. PRIOR DETERMINATIONS 2. On 8 October 2014, the ATO decided to issue default FBT assessments for the 2010, 2011, 2012 and 2013 fringe benefit years for GSLL under s 73 of the Fringe Benefits Tax Assessment Act 1986 (Cth) ( the FBT Act ) in relation to two vehicles, namely, a 2007 PAGE 3 OF 25

4 BMW 530i and a 2011 BMW 520d. 1 The summary of all liabilities and penalties imposed was recorded as follows: 2 FBT year FBT payable Base penalty rate applied 75% Total penalties and FBT payable 2010 $28, $21, $50, $28, $21, $50, $17, $12, $30, $16, $12, $30, TOTAL $90, $68, $161, The ATO decided to issue default FBT assessments for the 2010, 2011, 2012 and 2013 fringe benefit years for MKDZ under s 73 of the FBT Act in relation to three vehicles, namely, a BMW E60 530i, a BMW 750i and a Mini Cooper. 3 The summary of all liabilities and penalties imposed was recorded as follows: 4 FBT year FBT payable Base penalty rate applied 75% Total penalties and FBT payable 2010 $33, $25, $58, $67, $50, $118, $86, $65, $152, Exhibit A, T-Documents, T29. 2 Ibid at p Ibid. 4 Ibid. PAGE 4 OF 25

5 2013 $61, $46, $108, TOTAL $249, $187, $439, The ATO decided to issue default FBT assessments for the 2012 and 2013 fringe benefit years for ZZSW under s 73 of the FBT Act in relation to two vehicles, namely, a Volkswagen Passat and a Porsche Cayenne. 5 The summary of all liabilities and penalties imposed was recorded as follows: 6 FBT year FBT payable Base penalty rate applied 75% Total penalties and FBT payable 2012 $ $96.95 $ $10, $7, $19, TOTAL $10, $8, $20, On 5 December 2014, GSLL and MKDZ each lodged an objection against the FBT assessments and the assessments of administrative penalties. 7 ZZSW also lodged an objection against the assessments of administrative penalties on that date On 25 May 2015, the respondent made objection decisions in respect of the objections lodged by the applicants. The objection lodged by GSLL was allowed in part by determining that the 2007 BMW 530i was owned by MKDZ. 9 The FBT liabilities for GSLL 5 Ibid. 6 Ibid. 7 Exhibit A, T-Documents, T46 and T47. 8 Exhibit A, T-Documents, T48. 9 Exhibit A, T-Documents, T53. PAGE 5 OF 25

6 and MKDZ were consequently adjusted accordingly. The objections lodged by MKDZ and ZZSW were disallowed On 24 July 2015, the applicants applied to this Tribunal for a review of the respondent s objection decisions dated 25 May On 20 August 2015, MKDZ lodged a second objection against the FBT assessments On 29 October 2015, the respondent made an objection decision allowing the second objection by accepting that MKDZ had not owned or leased the BMW E60 530i during the relevant tax periods. 12 On 18 November 2015, the respondent issued MKDZ with a notice of amended assessment to decrease its FBT liabilities in accordance with the second objection decision. 13 FACTS 10. Mr Ooi is the sole shareholder of MKDZ GSLL and ZZSW are owned by an investment company. 15 Mr Ooi is a 70% shareholder of that investment company as trustee for a family trust. Mr Goh and his wife hold 30% of the shares in the investment company as trustees for a family trust Mr Ooi was the director, business manager and head chef of the applicants at all material times. 17 Mrs Ching is the office manager of the applicants and handles the paperwork Mr Goh was the tax agent of the applicants at all material times. In a statement dated 7 February 2016, Mr Ooi stated that Mr Goh was paid $35,000 per year for his accounting 10 Exhibit A, T-Documents, T52, T Exhibit A, T-Documents, T Exhibit A, T-Documents, T Exhibit A, T-Documents, T66-T Exhibit C, Statement of Mr Ooi signed 7 February 2016 at [8]. 15 Ibid at [9] and [11]. 16 Ibid at [6]. 17 Ibid at [4]. 18 Ibid at [95]. PAGE 6 OF 25

7 services. 19 At the hearing Mr Ooi said that Mr Goh was paid approximately $40,000 per year Mr Ooi and Mr Goh met in the 1980s. Mr Ooi states that their relationship has developed over time and describes Mr Goh as his business partner. 21 Mr Goh states that he considers himself to be an investor rather [than] a partner On 11 July 2014, the Australian Taxation Office ( the ATO ) notified Mr Goh of the commencement of an audit to determine whether the applicants had an obligation to lodge fringe benefit tax ( FBT ) returns for the 2010, 2011, 2012 and 2013 fringe benefit years. The ATO also notified the applicants by way of a letter posted on that date. 23 All relevant letters sent by ATO to the applicants were addressed to Mr Ooi in his capacity as the Public Officer. 16. On 7 August 2014, Mr Ooi and Mr Goh attended a meeting with ATO auditors. 24 On the following day, the ATO sent the applicants a letter stating that they were required to lodge FBT returns for the 2010, 2011, 2012 and 2013 fringe benefit years. The letter specified that, if the returns were not lodged by 5 September 2014, default assessments would be issued and a minimum penalty of 75% may be imposed On 4 September 2014, Mr Goh attended another meeting with ATO auditors. It was recorded that Mr Goh presented two logbooks relating to a Porsche Cayenne and a BMW 750i in the record of the meeting On 12 September 2014, the ATO advised Mr Goh that the ATO had not received the requested FBT returns and would consequently issue default assessments using the statutory method. Mr Goh was recorded as saying that he had not lodged FBT returns 19 Ibid at [7]. 20 Transcript of proceedings, p Exhibit C, Statement of Mr Ooi signed 7 February 2016 at [5]. 22 Transcript of proceedings, p Exhibit A, T-Documents, T Exhibit A, T-Documents, T Exhibit A, T-Documents, T Exhibit A, T-Documents, T20. PAGE 7 OF 25

8 because he anticipated that the ATO would disagree with the returns and instead would prefer to negotiate after the ATO completed calculations On 16 September 2014, the applicants lodged applications to register for FBT. 28 ISSUES 20. The sole issue for consideration is whether the applicants are entitled to the remission of administrative penalties under s (3) of Sch 1 to the Taxation Administration Act 1953 (Cth) ( TAA53 ). 21. The applicants no longer seek a review of the respondent s objection decisions with respect to the assessments for FBT. 29 LEGISLATIVE FRAMEWORK Fringe Benefits Tax 22. The FBT is a tax imposed on employers in respect of non-salary benefits which are provided to their employees in respect of employment. The Fringe Benefits Tax Assessment Act 1986 (Cth) ( FBTAA ) is the principal Act which assesses a taxpayer s liability to FBT. 23. Section 68 of the FBTAA provides that where an employer is liable to pay FBT, the employer must furnish an FBT return to the respondent no later than 21 May in the next year of tax or at a later date that the respondent allows. 24. Section 70(a) of the FBTAA provides that an FBT return must be in the approved form. Section 70(b) of the FBTAA provides that an FBT return must specify the FBT amount of the employer of the relevant year of tax and the amount of tax payable on that amount. 27 Exhibit A, T-Documents, T Exhibit A, T-Documents, T Applicants submissions on hearing dated 3 May 2016 at [6]. PAGE 8 OF 25

9 25. Section 73 of the FBTAA provides that the respondent will make a default assessment where an employer has not furnished a return in respect of the relevant year of tax and the respondent considers that the employer is liable to pay FBT in respect of that year. Administrative penalties 26. The uniform administrative penalties regime is set out under Pt 4-25 of Sch 1 to the TAA53. Liability to penalty 27. Section (3) of Sch 1 to the TAA53 provides that a taxpayer is liable to an administrative penalty where: (a) (b) (c) the taxpayer fails to give a return, notice or other document to the respondent by the required date; and that document is necessary for the respondent to accurately determine a taxrelated liability of the taxpayer (other than a liability arising under the Excise Acts); and the respondent determines the tax-related liability without the assistance of that document. 28. Section of Sch 1 to the TAA53 contains a table setting out an index of each taxrelated liability under other Acts. Item 25 of the table provides that the fringe benefits tax is a tax-related liability under s 90 of the FBTAA. Base penalty amount 29. Section (1) of Sch 1 to the TAA53 contains a table to be applied in calculating the base penalty amount under sub-division 284 B of the TAA53. Item 7 of the table provides that the base penalty amount is 75% of the tax-related liability concerns where the taxpayer is liable to an administrative penalty under s (3). PAGE 9 OF 25

10 Remission of penalty 30. Section (1) of Sch 1 to the TAA53 provides a discretion for the respondent to remit a penalty in part or whole. The PSLA 2014/4 gives guidelines on how this discretion may be exercised. Paragraph 26 of the PSLA 2014/4 states that the question of remission must be considered with respect to all of the relevant facts and the particular circumstances of the taxpayer and having regard to the purpose of the provision. 31. Paragraph 27 of the PSLA 2014/4 states that the objective of consistent treatment by reference to specified rates of penalty would be compromised if the penalties imposed at the rates specified in the law were remitted without just cause, arbitrarily or as a matter of course. 32. Paragraph 28 of the PSLA 2014/4 states that remission will generally occur where: the taxpayer had a genuine belief that they were not required to lodge the document; or circumstances beyond the taxpayer s control affected their ability to lodge the document; or the amount of penalty imposed by law would cause an unjust result; or there were credits available to offset the amount of the tax-related liability payable; or there was extraordinary cooperation from the taxpayer during an examination. 33. Section 14ZZK(b) of the TAA53 provides that the taxpayer has the burden of proving that the reviewable decision should not have been made or should have been made differently. Safe harbour provisions 34. Section (6) of Sch 1 to the TAA53 provides that liability to an administrative penalty under subs (1) and (4) is excluded where: (a) you engage a * registered tax agent or BAS agent; and PAGE 10 OF 25

11 (b) you give the registered tax agent or BAS agent all relevant taxation information; and (c) the registered tax agent or BAS agent makes the statement; and (d) the false or misleading nature of the statement did not result from: (i) intentional disregard by the registered tax agent or BAS agent of a * taxation law (other than the * Excise Acts); or (ii) recklessness by the agent as to the operation of a taxation law (other than the Excise Acts). 35. Section (1A) of Sch 1 to the TAA53 provides that liability to an administrative penalty under sub (1) is excluded where: (a) you engage a * registered tax agent or BAS agent; and (b) you give the registered tax agent or BAS agent all relevant taxation information to enable the agent to give a return, notice, statement or other document to the Commissioner in the * approved form by a particular day; and (c) the registered tax agent or BAS agent does not give the return, notice, statement or other document to the Commissioner in the approved form by that day; and (d) the failure to give the return, notice, statement or other document to the Commissioner did not result from: (i) intentional disregard by the registered tax agent or BAS agent of a * taxation law; or (ii) recklessness by the agent as to the operation of a taxation law. 36. There is no equivalent safe harbour provision applicable to s (3) of Sch 1 to the TAA53. CONTENTIONS Applicants contentions 37. The applicants contend that the discretion set out within s (1) of Sch 1 to the TAA53 should be exercised to remit the penalty in part or whole. They contend that there is no requirement to demonstrate any particular special circumstances exist, such as those set out in para 28 of the PSLA 2014/4, before the discretion can be exercised. They further contend that the Tribunal is not bound by the policy expressed in the PSLA 2014/4. PAGE 11 OF 25

12 38. The applicants contend that the discretion to remit the penalty under s (1) of Sch 1 to the TAA53 should be exercised on the basis that: The director of the applicants, Mr Ooi, entrusted Mr Goh with their financial management, including all taxation compliance obligations; Mr Goh, in his capacity as an accountant, completely and singularly failed to discharge his professional obligations to enable the applicants to comply with their FBT obligations; and Mr Ooi had no knowledge of the applicants taxation compliance obligations, particularly in relation to FBT. 39. The applicants contend that they are not liable for an administrative penalty under s (1) of Sch 1 to the TAA53 because they qualify for the exception to such an administrative penalty under s (1A) of Sch 1 to the TAA The applicants contend that the base penalty amount under item 1 of the table contained in s of Sch 1 to the TAA53 should not be applied. The basis for this contention is that their behaviour and conduct did not demonstrate an intentional disregard or recklessness in regard to FBT obligations. They contend that Mr Ooi was unable to do so because he was unaware of his FBT obligations. 41. The applicants contend that the base penalty amount under item 2 of the table contained in s of Sch 1 to the TAA53 should be not applied. The basis for this contention is that the evidence does not indicate that Mr Goh, in his capacity as a tax agent, asserted recklessness. 42. The applicants contend that the appropriate base penalty, if any, should not be levied under item 7 of the table contained in s of Sch 1 to the TAA53. Instead, they contend, the penalty should be levied under item 3 of the table. The basis for this contention is that it was the failure of Mr Goh, in his capacity as the applicants tax agent, to take reasonable care to comply with the FBT lodgement regime. Respondent s contentions 43. The respondent contends that the applicants were given more than ample time to lodge the outstanding FBT returns when they were directed to do so before 5 September PAGE 12 OF 25

13 44. The respondent contends that it was appropriate that an administrative penalty was imposed under s (3) of Sch 1 to the TAA53 as each of the requirements under that subsection have been satisfied. They further contend that there is no legal basis to challenge the imposition of the administrative penalty under s (3) of Sch 1 to the TAA The respondent contends that there is no discretion to impose any other rate than the base penalty rate under item 7 in the table under s (1) of Sch 1 to the TAA53 where the administrative penalty was imposed under s (3) of Sch 1 to the TAA The respondent contends that the other items contained in the table under s (1) of Sch 1 to the TAA53 have no application because the administrative penalty was not imposed under s (1) or (4) of Sch 1 to the TAA The respondent contends that, pursuant to s 14ZZK(b) of the TAA53, the applicants have the burden of proving that the remission decision should not have been made or should have been made differently. 48. The respondent contends that it is appropriate for the Tribunal to take into account the PSLA 2014/4 because to do so has the benefit of achieving consistency in decisionmaking. They further contend that paras 26 to 45 of the PSLA 2014/4 are consistent with the test set out by Griffiths J in Sanctuary Lakes Pty Ltd v Federal Commissioner of Taxation (2013) 90 ATR The respondent contends that Mr Ooi s conduct in the course of the audit demonstrates recklessness toward to the applicants FBT obligations. They contend that Mr Ooi either knew or ought to have known that the applicants were required to lodge the outstanding FBT returns by 5 September 2014 as early as 7 August They contend that Mr Ooi also knew or ought to have known that the ATO intended to issue assessments and to impose a penalty of 75% for each FBT return not lodged prior to the audit on 9 October The respondent contends that the evidence indicates that Mr Goh had advised Mr Ooi about the applicants FBT obligations. They contend that Mr Ooi was aware of the applicants FBT obligations after his first meeting with the ATO on 7 August PAGE 13 OF 25

14 51. The respondent contends that Mr Ooi s reliance on Mr Goh does not support the applicants contention that the level of administrative penalty be remitted given that Mr Ooi failed to follow Mr Goh s advice to keep the logbook. 52. The respondent contends that the knowledge and actions of Mr Goh are also relevant in relation to the consideration of the remission of penalties. They contend that Mr Goh was aware of the applicants obligation to lodge FBT returns as early as 30 June The respondent contends that the safe harbour provisions in ss (1A) and (6) of Sch 1 to the TAA53 have no application in relation to the penalty imposed under s (3) of Sch 1 to the TAA53. CONSIDERATION Are the applicants liable to a penalty under s (3) of Sch 1 to the TAA53? 54. I am satisfied that the applicants are liable to a penalty under s (3) of Sch 1 to the TAA53. Each of the paragraphs (a) to (c) of that provision, which are necessary for the penalty to be applied, have been satisfied. 55. Section 68 of the FBTAA requires that outstanding FBT returns be lodged by 21 March in the next year of tax or such later date as the Commissioner allows. The applicants did not lodge their FBT returns by 21 March of the relevant years. 56. On 8 August 2014, the ATO sent the applicants a letter stating that they are obligated to lodge FBT returns for the 2010, 2011, 2012 and 2013 fringe benefit years by 5 September Mr Goh stated in evidence that he had read the letter and had advised Mr Ooi of its contents. He also stated that they had discussed how they would go about lodging the returns and the logbooks. 31 The applicants did not lodge the FBT returns by the required date. Therefore, s (3)(a) of Sch 1 to the TAA53 has been satisfied. 57. The applicants FBT returns were necessary for the respondent to accurately determine the applicants liability to pay FBT. The respondent cannot be expected to accurately 30 Exhibit A, T-Documents, T Transcript of proceedings, pp PAGE 14 OF 25

15 determine a tax-related liability of the taxpayer in the absence of a tax return. FBT is a taxrelated liability under s 90 of the FBTAA as shown at item 15 in the table under s (2) of the TAA53. Therefore, s (3)(b) of Sch 1 to the TAA53 has been satisfied. 58. On 8 October 2014, the ATO determined the applicants tax-related liability without the assistance of the FBT returns. The ATO issued default assessments for the relevant FBT years under s 73 of the FBTAA. Therefore, s (3)(c) of Sch 1 to the TAA53 has been satisfied. 59. The applicants lodged applications to register for FBT on 16 September However, this was after the date that they were due and the assessment was made without reference to the applications. Are any safe harbour provisions applicable? 60. There are no safe harbour provisions applicable to an administrative penalty under s (3) of Sch 1 to the TAA53. The provisions advanced by the applicants apply to penalties other than s (3) of Sch 1 to the TAA53. Section (6) of Sch 1 to the TAA53 applies to an administrative penalty imposed under subs 284(1) and (4) of Sch 1 to the TAA53. Section (1A) of Sch 1 to the TAA53 applies to an administrative penalty imposed under s (1) of Sch 1 to the TAA53. What is the applicable base penalty rate? 61. The applicable base penalty rate is to be determined with reference to the penalty applied and the table contained in s (1) of Sch 1 to the TAA The applicants are liable to a penalty under s (3) of Sch 1 to the TAA53. Item 7 of the table contained in s (1) of Sch 1 to the TAA53 provides that where the taxpayer is liable to an administrative penalty under s (3) the applicable base penalty amount is 75% of the tax-related liability. 63. The respondent is correct in their contention that there is no discretion to impose any base penalty rate other than the rate under item 7 in the table where the administrative penalty 32 Exhibit A, T-Documents, T23-T26. PAGE 15 OF 25

16 was imposed under s (3) of Sch 1 to the TAA53. The second column of the table clearly states that the base penalty amount applies in this situation. I cannot apply an alternative base penalty amount which was intended to apply to a different situation. Should the discretion to remit the penalty in part or whole be exercised? 64. The applicants seek the exercise of the discretion under s (1) of Sch 1 to the TAA53 to remit the penalty in part or whole. There are no criteria set out in the TAA53 that must be considered in deciding whether to exercise it or not. The criteria in PSLA 2014/4 provide guidance. 65. Severity or harshness is not a requirement for remission. Rather remission must be appropriate based on the taxpayer s particular circumstances. Griffiths J provided in Sanctuary Lakes Pty Ltd v Commissioner of Taxation (2013) 212 FCR 483 at 534 to 535: In my view, there is no warrant for reading into the broad discretion conferred by s of the TAA 1953 (or, indeed, former s 227(3) of the ITAA 1936) a requirement that the decision-maker must be satisfied that the outcome is harsh for the particular taxpayer in his or her individual circumstances unless penalty is remitted. It may be appropriate in a particular case to remit a penalty on the basis that the outcome otherwise could be described as harsh, but that does not mean that harshness should be elevated to an essential element in determining whether or not to remit the penalty under s In my opinion, the correct question which arises under s should not be expressed in terms of harshness. Rather, the question is simply whether the decision-maker is satisfied having regard to the taxpayer's particular circumstances that it is appropriate to remit penalty in whole or in part. For example, a decision-maker might determine that it is appropriate to remit penalty in whole or in part because otherwise the outcome for a particular taxpayer would be unreasonable or unjust (and therefore inappropriate), as opposed to harsh (see the observations of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 on the different meanings of the individual words harsh, unjust and unreasonable in a different context concerning unfair dismissal and the collocation of those words in both legislation and an industrial award). In my view, there is no warrant for confining the otherwise broad discretion in s to circumstances where the outcome of imposing administrative penalty would otherwise be harsh. 66. It is appropriate to consider paras 28 to 45 of the PSLA 2014/4 as they have relevance to this application in determining whether the discretion should be exercised. I am satisfied PAGE 16 OF 25

17 that these examples are consistent with the interpretation of the discretion by Griffiths J in Sanctuary Lakes. The examples listed direct attention to the taxpayer s particular circumstances and help identify whether it would be unreasonable or unjust if the penalty were not remitted. I will consider each of these examples in turn. Understanding 67. Paragraph 29 of the PSLA 2014/4 states that it may be appropriate to remit a penalty where the taxpayer has a mistaken belief that lodgement was not required. 68. I consider the understanding of both Mr Goh and Mr Ooi to be relevant to this consideration. I do not consider the relationship between Mr Goh and the applicants can be characterised solely as one of a tax agent and their client. He and his wife were jointly 30% shareholders in the investment company which is the sole shareholder in GSLL and ZZSW. He is also a director of that investment company. Moreover, given that the operations of each of the applicants were interconnected, it was in Mr Goh s interests that each of the applicants succeeded Mr Goh stated that he did not make business decisions. However, this was because Mr Goh did not want to be personally involved in the running of the restaurants. 34 It was not because Mr Goh s relationship was limited to that of a tax agent and their client. Mr Goh was given the opportunity to contribute towards significant business decisions. For example, Mr Ooi had sought Mr Goh s opinion about the opening of new restaurants I am not satisfied that Mr Goh was unaware of the requirement of the applicants to lodge FBT returns. Mr Goh has been registered as a tax agent since 1987 and as a chartered accountant since He agreed that he has a good understanding of the FBT obligations when it was put to him at the hearing. 36 Given his experience and knowledge it is not plausible that he was unaware of the applicants requirement to lodge FBT returns. If the respondent had not identified the avoidance of FBT, Mr Goh stood to benefit through 33 Transcript of proceedings, at pp Exhibit H, Statement of Mr Goh dated 3 February 2016 at [13]. 35 Transcript of proceedings, at p Transcript of proceedings, p PAGE 17 OF 25

18 the investment by his family trust in two companies that had not discharged their significant FBT liabilities. 71. Mr Goh stated that the applicants did not lodge FBT returns because he believed that they were not required to. He did not consider that they had FBT liabilities because the applicants received employee contributions or were reimbursed for private use. 37 He also believed that the applicants were not required to lodge FBT returns because of the logbooks I consider that Mr Goh could not have been in any doubt that the applicants were required to lodge FBT returns after receiving the letter from the ATO dated 8 August Mr Goh did not dispute that he received the letter. 39 The letter clearly stated that the applicants were required to lodge FBT returns by 5 September Mr Goh stated that he informed the ATO again that he did not believe the applicants had FBT liabilities. They informed him that he should notify them of his belief in writing before 5 September There is no evidence that this was ever done. 74. On 12 September 2014, an ATO audit officer made the following file note of a telephone conversation with Mr Goh: 42 He said he agreed he had to lodge but wanted me to provide the calculations and we could negotiate. He said he didn t want to waste his time by doing them if I was going to disagree with what he came up with. 75. Mr Ooi was made aware of the requirement of the applicants liability to pay FBT at the meeting of 7 August In his statement Mr Ooi refers to the meeting and in the following paragraph he states: 43 I was shocked at the FBT obligations. Mr Goh never advised me about the FBT obligation whenever I asked him about purchasing a luxury car in a company s name. 37 Exhibit H, Statement of Mr Goh dated 3 February 2016 at [70]. 38 Ibid at [81]. 39 Ibid at [82]. 40 Exhibit A, T-Documents, T Exhibit H, Statement of Mr Goh dated 3 February 2016 at [83]. 42 Exhibit A, T-Documents, T Exhibit C, Statement of Mr Ooi signed 7 February 2016 at [92]. PAGE 18 OF 25

19 76. In his statement, Mr Ooi asserts that he did not receive the ATO s letter of 8 August 2014 nor did Mr Goh inform him of it. 44 It is not clear why Mr Ooi did not receive the letter of 8 August 2014 given that it was addressed to him. He states that: 45 If I had known about the letter of demand from the ATO requiring the FBT returns to be lodged by 5 September 2014, I would have made every effort to lodge the FBT returns by 5 September However, I have never been told what to do in relation to the letter of demand. Mr Goh did not explain to me about the FBT returns. 77. I am not satisfied that Mr Ooi was not aware that the applicants were required to lodge their FBT returns on the deadline of 5 September Undoubtedly Mr Ooi knew that some action was required after the meeting of 7 August It was after that meeting and before 5 September 2014 that he prepared the logbook based on his recollection of the use of the vehicle in previous years. 46 Moreover, Mr Goh agreed that he advised Mr Ooi of the content of the letter dated 8 August Paragraph 29 of the PSLA 2014/4 states that a taxpayer s efforts to understand and comply with their obligation to lodge can be taken into account. It is concerning that Mr Ooi failed to take a more active involvement in the applicants financial obligations after the meeting of 7 August Mr Ooi describes himself as being shocked at the meeting of 7 August 2014 because he was told that the applicants had FBT obligations that Mr Goh had failed to advise him of. 48 If this were the case, then Mr Ooi should have taken some action to comply with the applicants tax obligations rather than rely on Mr Goh to do so. 79. Paragraph 31 of the PSLA 2014/4 distinguishes between an honest misunderstanding of an obligation to lodge, circumstances precluding lodgement beyond the control of the taxpayer, and ignoring, disregarding or a failing to manage the lodgement obligation. The ATO explained to both Mr Ooi and Mr Goh that the applicants had an obligation to lodge FBT returns at the meeting of 7 August The ATO also requested by letter dated 8 August 2014 that the applicants lodge the FBT returns and they were not lodged within a 44 Ibid at [97]. 45 Ibid at [100]. 46 Transcript of proceedings, p. 31; Exhibit C, Statement of Mr Ooi signed 7 February 2016 at [100]. 47 Transcript of proceedings, p Exhibit C, Statement of Mr Ooi signed 7 February 2016 at [92]. PAGE 19 OF 25

20 reasonable time, namely, on or before 5 September I consider that the applicants have failed to manage or have disregarded their FBT lodgement obligation. Therefore, remission is not appropriate on this basis. Control 80. Paragraph 33 of the PSLA 2014/4 provides that remission may be appropriate where circumstances beyond the taxpayer s control render them unable to lodge the document. 81. The FBT returns were not lodged before 21 May of the relevant years because Mr Goh asserted that the applicants were not liable to pay FBT. It is apparent from the telephone conversation between Mr Goh had with the ATO auditor on 12 September 2014 that the applicants FBT returns were not lodged by 5 September 2014 because he didn t want to waste his time by doing them if [the ATO] was going to disagree with what he came up with. 49 I am not satisfied that the FBT returns were not lodged due to circumstances beyond the applicants control. Unjust result 82. Paragraph 33 of the PSLA 2014/4 states that remission may be appropriate where the penalty will provide an unjust result. Griffiths J explained in Sanctuary Lakes at 535 that whether or not a result is unjust is to be assessed against the taxpayer s particular circumstances. 83. The base penalty rate of 75% is a significant one. Paragraph 38 of the PSLA 2014/4 states that the total amount of penalty and interest charge should be considered to ensure it represents a defendable and reasonable amount. 84. The applicants contend that 75% is an unjust penalty where the failure to lodge was a result of ignorance of the law. This may be so. However, several actions of Mr Ooi and particularly Mr Goh are indicative of a disregard for the applicants FBT obligations rather than ignorance, including: 49 Exhibit A, T-Documents, T21. PAGE 20 OF 25

21 Mr Goh s unsatisfactory explanation for failing to lodge the FBT returns by 5 September 2014; Mr Ooi failure to follow Mr Goh s advice to retain a logbook for the relevant motor vehicles; and Mr Ooi s and Mrs Ching s retrospective completion of logbooks based on recollection in order to reduce FTB liability. Cooperation 85. Paragraph 42 of the PSLA 2014/4 states that remission may be appropriate where a taxpayer provides a level of cooperation that exceeds reasonable cooperation during an examination. I am not satisfied that the applicants have provided the requisite level of cooperation at any time. 86. Neither Mr Ooi nor Mr Goh made a voluntary disclosure at the meeting held on 7 August Mr Ooi states that Mr Goh did not explain what a voluntary disclosure was to him Paragraph 43 of the PSLA 2014/4 states that remission may be appropriate where the taxpayer provides the respondent with information which allows the respondent to determine the tax-related liability. Mr Goh provided the ATO with a logbook that was created based on Mr Ooi s and Mrs Ching s recollection. 51 Mr Ooi stated in evidence that he created the logbook to try to reduce the applicants FTB liability and because he knew the absence of one was a problem. 52 Creating a logbook well after the events being logged defeats the purpose of having a logbook, that being to keep an accurate contemporaneous record. 88. Mr Goh attempted to pass off the logbooks as being prepared at the time of the entries when he provided them to the ATO on 4 September This claim was disproved by the audit officer who observed that the logbook itself was only published after the date of the entries recorded Exhibit C, Statement of Mr Ooi signed 7 February 2016 at [93]. 51 Transcript of proceedings, p Ibid at pp Exhibit A, T-Documents, T20. PAGE 21 OF 25

22 89. Paragraph 44 of the PSLA 2014/4 provides that remission should not be considered where the taxpayer knowingly failed to lodge the required documents. The applicants knowingly failed to lodge the FBT returns by 5 September I am not satisfied that the applicants cooperated during the examination to the extent that exceeded reasonable cooperation. Inconsistent communication 90. The applicants in their further submissions on hearing dated 24 June 2016 point out that while the letter from the respondent dated 8 August 2014 stated that the deadline to lodge their FBT returns was 5 September 2014, the respondent still requested further information on 16 September The applicants submit that the respondents actions have been inconsistent. However, the communication of 16 September 2014 in which further information was requested did not in any way detract from the letter of 8 August 2014 which required the FBT returns to be lodged by 5 September CONCLUSION 91. The applicants are liable to an administrative penalty under s (3) of Sch 1 to the TAA53 for failing to lodge their FBT returns by 5 September The returns were necessary for the respondent to accurately determine the applicants FBT liability. The respondent was required to determine the applicants FTB liability using default assessments and without the assistance of the returns. 92. The base penalty amount is 75% in the situation where an administrative penalty under s (3) of Sch 1 to the TAA53 is imposed. The safe harbour provision under s (6) of Sch 1 to the TAA53 does not apply to an administrative penalty under s (3) of Sch 1 to the TAA The applicants did not have a penalty imposed under s (1) of Sch 1 to the TAA53. In these circumstances, s (1A) of Sch 1 to the TAA53 is not applicable. In any event, the applicants have not discharged the evidential burden that they would have borne under s (1B) of Sch 1 to the TAA53 to prove that they complied with s (1A)(b) of Sch 1 to the TAA53. PAGE 22 OF 25

23 94. The discretion vested under s (1) of Sch 1 to the TAA53 requires the consideration of whether the decision-maker is satisfied having regard to the taxpayer s particular circumstances that it is appropriate to remit penalty in whole or in part. 54 Accordingly, the power under s requires consideration to be given to the particular circumstances of the taxpayer I have considered the applicants particular circumstances in deciding whether the discretion contained in s (1) of Sch 1 to the TAA53 to remit the penalty should be exercised. I am not satisfied that remission should occur for any of the reasons set out in the submissions of the applicants or for any other reason. 96. While Mr Goh was not a business partner as described in the evidence of Mr Ooi, his relationship with the applicants was more than that of an accountant and client. Mr Goh had an interest in the applicants (except for MKDZ) by way of the 30% interest of his family trust in the investment company which is the sole shareholder in GSLL and ZZSW. Mr Ooi in evidence pointed out that he informed Mr Goh when he made important decisions concerning those companies. Moreover, his approval was sought by Mr Ooi before making the decision to open new restaurants. 97. Mr Towers, a chartered accountant engaged by the applicants after the default assessment was imposed, indicated in a letter dated 21 June 2016 that in his opinion Mr Goh was naive in not being aware that a 75% base penalty would be imposed. However, Mr Goh acknowledged receiving the letter of 8 August In that letter, which was addressed to the attention of Mr Goh, there is a clear statement that the applicants may also be liable for a minimum penalty of 75% for each FBT return not lodged Mr Goh was fully aware of the applicants obligation to lodge their FBT returns by 5 September However, he elected not to comply with the obligation. There is no contention that the letter of 8 August 2014 did not give the applicants adequate time to lodge their FBT returns. Mr Goh did not seek an extension of time to lodge the FBT returns. 54 See Sanctuary Lakes Pty Ltd v Commissioner of Taxation (2013) 212 FCR 483 at [249] per Griffiths J with whom Edmonds J agreed. 55 Ibid at [251]. 56 Exhibit A, T-Documents, T16 at p PAGE 23 OF 25

24 99. Mr Goh asserts that the FBT returns were not lodged before 5 September 2014 because he did not believe the ATO would accept his calculations. This does not amount to a circumstance beyond the applicants control or an adequate reason why he did not file the return Mr Ooi states that he was unaware of the applicants obligation to lodge the returns because he was reliant on Mr Goh. Despite being shocked at the meeting held on 7 August 2014, Mr Ooi, as a company director, failed to take the level of care that a reasonable person in a similar situation would take to ensure that the applicants complied with their obligations after the meeting I do not consider that the culpability of the applicants in failing to provide the returns to the respondent by 5 September 2014 is disproportionately insignificant to the base penalty rate I certainly draw an adverse inference against the applicants from the provision of a logbook that was published after the purported entries in the logbook. This conduct does not warrant any remission of penalty I do not consider it appropriate to remit the administrative penalty imposed either in part or whole. The applicants have an onus under the former s 14ZZK(b)(iii) of the TAA53 (which applies to this application under Act no 88 of 2013) to prove that the remission decision should have been made differently. The applicants have not discharged this onus. I also do not consider that the applicants have discharged the onus of showing that the objection decisions are excessive. DECISION 104. I affirm the decisions under review. I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD PAGE 24 OF 25

25 ...[sgd]... Associate Dated 29 November 2016 Date(s) of hearing 4-5 April 2016, 13 June 2016 Date final submissions received 25 July 2016 Counsel for the Applicant Solicitors for the Applicant Mr SC Fisher Emmanuel Lawyers Solicitors for the Respondent Australian Taxation Office Legal Services Branch PAGE 25 OF 25