Australian Taxation The Appellant Samples †MyAssignmenthelp.com

Question: Discuss about the Australian Taxation Appellant. Answer: Case introduction: The appellant under the current case worked as a senior public servant within the Australian taxation office. The appellant had considered retirement but did not made any formal plans and took recreational leave followed by a period of long service leave. During this time, the task of the appellant was reallocated and the she thought that her role had been made redundant. In an email to the national director, she had formally bought forward the possibility of a voluntary redundancy (Woellner et al. 2016). The Australian taxation office did not agreed with the appellant that there was a redundancy however, the query in the later stages was revisited and approval was provided so that it make a formal offer of redundancy. The appellant was eventually dismissed. The fundamental constituent of the matter was that the appellant opposes that the tax appropriately payable as the part of her redundancy payment is nil however, the respondent commissioner contended that the proper tax that was payable stood $7825. The appellant argued that her termination payment constituted a genuine redundancy payment under section 83-175 of the ITAA 1997 and was a tax-free element (Morgan, Mortimer and Pinto 2016). Outline of the sections breached and explanation of the section breached: The primary judge recognised the question of law by stating that given an employee is terminated under section 29 (3) (a) of thePublic ServiceAct 1999 orcl97.1 of the Agency Agreement. Based on these grounds, as an employee the appellant is excess to the requirements of the Australian taxation office (Barkoczy et al. 2016). The appellant service could not be any more utilised nor does any payment made as the consequences of the termination falls under the expression of genuine redundancy payment under section83-175(1) of the ITA Act 1997. Critical discussion and analysis of the court/tribunal decision: The tribunal recounted the employment history of appellant with the Australian taxation office. Having done that the tribunal turned to consider the law by referring to the provision of section83-175(1) of the ITA Act 1997 and noted that the payment of genuine redundancy within the meaning of the provision was regarded as tax-free component in the hands of the former employee. The tribunal member later stated on being satisfied that the taxpayer was dismissed from the employment however critically recognised the question as whether the appellant was genuinely redundant (Robin, Barkoczy and Woellner 2016). The tribunal noticed that the letter from the assistant commissioner seemed to place the query beyond doubt since the correspondence had particularly mentioned to voluntary redundancy because the service of the taxpayer could not be any longer utilised. Nevertheless, the tribunal turned to take into the consideration of a submission made by the commissioner concerning the effect of clause 97 of the Agency Agreement. The tribunal found a distinction contained in the clause 97, which was highlighted in numerous authorities based on the issue including The Queen v The Industrial Commission of South Australia. The tribunal noticed that those authorities evidently makes it clear that redundancy occurs when an employer needs no more a job should be done by any person (Barkoczy 2016). The tribunal states that where a job effectively disappears should be eminent from the situation where the employer no more wants the job to be done by the employee in question. The tribunal later arrived to the ultimate dispositive conclusion of the appellant application by stating that the work in the current case has not been disappeared despite the change in the position number. A variety of functions under the area is yet to be performed by someone at the E.L 2.1 level. The tribunal follows by stating that the employees position is not redundant under this case even though the particular employee could not be any lon ger utilised in that role. Relevant legislative provision: As evident from the tribunals decision that the critical legislative provision under the current appeal is included in section 83-178 of the ITAA 1997. Section 83-170 defines the tax-free treatment of the genuine redundancy payments and early retirement scheme payments under the ITA Act (Vann 2016). Section 83-175 defines that a genuine redundancy payment as a payment that is received by the employee from the dismissal of their employment because the position of the employee is genuinely redundant and exceeds the amount that can be anticipated to be received by the employee as the result of voluntary termination from their employment during dismissal. Appellant questions of law: The history of the appellant defined above states that Ms Weeks possessed legal qualification and experience. In spite of the lawful background, it was apparent from the oral submission of the appellant that she did not seemed to be aware of the critical importance concerning the identification of the question of law for the purpose of the appeal under section 44 of the Agency Agreement Act. Such lack of awareness seems to have adversely created an impact on the drafting of the questions of law in Ms Weeks notice of appeal (Anderson, Dickfos and Brown 2016). The question of law that was set out in the appellant supplementary notice of appeal contained the following Whether the payment made by the statutory agency to an ongoing Australian public service officer regarding termination of employment under paragraph 29 (3) of the Public Service Act 1999 that the officer is excess to the requirements of the agency as the employment termination payment under section 83-175 of the ITAA 1997. Whether the clause 97.2 of the ATO agency agreement is unenforceable due to its inconsistency with clause 97.1 and is beyond the authority of public service act (Braithwaite and Braithwaite 2016). Whether the redundancy payment that is given to an ongoing APS officer concerning the termination of the officer employment under clause 97.1 of the agency agreement that the service of the officer cannot be any longer effectively used by the ATO under section 83-175 of the ITAA 1997 as the employee termination payment. Whether the statutory agency that has dismissed the employment of an ongoing APS officer was excess from the requirement of the agency (Tran and Walpole 2016). Whether the statutory agency is authorised to make payment to that officer from the consolidated revenue fund regarding termination where the statutory agency believes that the officer was not genuinely redundant. The grounds was reliant on the supplementary notice of appeal. The tribunal made a mistake in determining that the redundancy payment that was made to the applicant did not constituted genuine redundancy payment. The tribunal made a mistake in the law in which it failed in its duty of procedural justice by illustrating bias in favour of the respondent (Wickramasuriya 2016). The tribunal failed to take into the considerations the primary submissions where the appropriate approach of determining section 83-175 of the ITAA is applicable in the circumstances, which requires paying considerations to the noteworthy provision of the public service act. It omitted to mention the terms of the key important document, which was the respondents business case for making the applicant redundant (Long, Campbell and Kelshaw 2016). The document contented that the respondent made unfavourable allegations concerning the applicant despite the fact that these matters had never been bought forward by the applicant and were not relevant under the grounds for proposed redundancy. The tribunal had erred in the law by going behind the statutory notice in the public service Gazette regarding the termination of the applicants employment because the applicant was excess to the requirements of the agency (Roles 2013). The finding of the tribunal stated that the applicant was genuinely willing to return to her role or somewhat that was closely approached was so unreasonable that no sensible tribunal could have arrived at it since it amounted to the discovery that the applicant was not redundant. Referring to the case of Commissioner of Taxation v Glennan(1999) the court held that as the general rule there could be no error of law given that AAT fails to consider the issue of fact and law, which is not the subject of argument by the taxpayer. There shall be no error of law in order to constitute the question of law with the objective of section 44 of the AAT Act regarding an issue that was not bought forward for consideration by the tribunal (Butler and James 2016). Therefore, such issue does not forms the subject of determination by the tribunal. This is applicable with particular force concerning two of the four questions of law that was set out in the appellant notice of appeal. This is because Ms Weeks did not bought forward the issue in her second and fourth question of law in front of the tribunal. Those questions include the validity of clause 97.2 of the agency agreement due to its alleged inconformity with the clause 97.1 and for being beyond the authority of the Public Service Act 1997 (Demanuele 2014). The fourth question of law included whether the payment can be legally made out of the consolidated revenue concerning redundancy under section 29 (3) (a) of the Public Service Act 1999where the statutory agency did not regarded the officer was genuinely redundant. Since the appellant Ms Weeks did not bought forward the issue before the tribunal neither of the above stated question of law was considered by it. As a result, no opportunity arose for the tribunal to commit an error of law regarding either of them such that the appellant Ms Weeks could pursue an appeal under section 44 of the AAT Act. This leaves Ms Weeks with the first and third question of law. The problems associated with the two question of law is that they emphasis on the source of the authority to make redundancy payment to the appellant instead of the nature of redundancy for which the payment was made (Chapman, Howe and Ainsworth 2015). If an employee is dismissed under section 29 (3) (a) of the Public service act or clause 97.1 of the agency agreement act because of excess requirement to ATO the genuine redundancy payment will not fall within the expression of genuine redundancy payment under section 83-175 (1) of the ITAA 1997. The tribunal in its decision stated that in order to be considered payment as genuine redundancy payment under section 83-175 (1) of the ITAA the position f the employee should be made redundant. Notably, for the resolution of this appeal, the member of tribunal had correctly recognised the distinction where it emphasised the difference amid the circumstances where an employer does not anymore requires a job to be performed by any employee (Eccleston and Smith 2015). Thus, it reflects a situation where the employer does not anymore wants the job to be done by a particular person or employee. Having made such valid distinction the member of the tribunal noticed as a matter of fact that Ms Weeks redundancy into the latter category. Hence, the member of the tribunal has not made any error of law in his construction under section 83-175 (1) of the ITAA 1977 and the findings of this fact is not open to be reviewed in this appeal. Conclusion: To conclude with this case, the court had found that the appellant had failed to establish the tribunal had made an error in law or the judge had made an error in to find the tribunal had erred in law. In the reason for providing such decision, it was found that the important question for the present purpose is whether Ms Weeks was genuinely redundant. The above stated case law defines that redundancy takes place when an employer no more wants that a job to be done by any person. Where a work effectually vanishes should be distinguished from the situation where the employer not anymore wants the work to be done by the employee in question. The court in this case had discovered that the job has not disappeared even though the position number had changed. References Anderson, C., Dickfos, J. and Brown, C., 2016. The Australian Taxation Office-what role does it play in anti-phoenix activity?.INSOLVENCY LAW JOURNAL,24(2), pp.127-140. Barkoczy, S., 2016. Foundations of Taxation Law 2016.OUP Catalogue. Barkoczy, S., Nethercott, L., Devos, K. and Richardson, G., 2016.Foundations Student Tax Pack 3 2016. Oxford University Press Australia New Zealand. Braithwaite, V. and Braithwaite, J., 2016. Managing taxation compliance: The evolution of the ATO Compliance Model. Butler, D. and James, R., 2016. Superannuation: New $500,000 lifetime cap is bad law.Taxation in Australia,50(11), p.683. Chapman, A., Howe, J. and Ainsworth, S., 2015. Centre for Employment and Labour Relations Law The University of Melbourne. Demanuele, C., 2014. Age-old tax sting in redundancy payouts.Professional Planner, (66), p.24. Eccleston, R. and Smith, H., 2015. Fixing Funding in the Australian Federation: Issues and Options for State Tax Reform.Australian Journal of Public Administration,74(4), pp.435-447. Long, B., Campbell, J. and Kelshaw, C., 2016. The justice lens on taxation policy in Australia.St Mark's Review, (235), p.94. Morgan, A., Mortimer, C. and Pinto, D., 2016. A practical introduction to Australian taxation law 2016. Robin, Barkoczy and Woellner (Stephen Murphy, Shirley Et Al), 2016.Australian Taxation Law 2016. Oxford University Press. Roles, C., 2013. Redundancy in the Australian public service-some critical reflections.Fed. L. Rev.,41, p.525. Tran-Nam, B. and Walpole, M., 2016. Tax disputes, litigation costs and access to tax justice.eJournal of Tax Research,14(2), p.319. Vann, R.J., 2016. Hybrid Entities in Australia: Resource Capital Fund III LP Case. Wickramasuriya, T., 2016. Tax counsel's report: The Tax Institute at the House Tax Committee.Taxation in Australia,50(11), p.651. Woellner, R., Barkoczy, S., Murphy, S., Evans, C. and Pinto, D., 2016. Australian Taxation Law 2016.OUP Catalogue.