Federal Court of Australia

Barth Family Trust (Trustee) v Commissioner of Taxation [2025] FCA 1693

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to amend the Notice of Appeal in terms of the draft dated 25 November 2025.

2.    The applicant have leave to file a supplementary submission in reply as per the draft handed up this day.

3.    The appeal be dismissed.

4.    The applicant pay the respondent’s costs of and incidental to the proceedings in a lump sum to be fixed by the registrar if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    This appeal from the Administrative Appeals Tribunal (Tribunal) raises a short but important point concerning the meaning of s 93-5 of the A New Tax System Goods and Services Tax Act 1999 (Cth) (GST Act) and its intersection with Pt IVC of the Taxation Administration Act 1953 (Cth) (TAA).

2    Insofar as presently relevant, the underlying facts are not in dispute. The parties are agreed that they were accurately summarised by the Tribunal in the Tribunal’s reasons (Trustee for the Barth Family Trust v Federal Commissioner of Taxation [2025] ARTA 1558) at [3] to [5] inclusive. The Tribunal there stated:

3.    The applicant operates a swimming pool construction business and has been registered for GST since 1 July 2000, accounting for GST on a cash basis and lodging quarterly business activity statements (BAS).

4.    As the table below illustrates, in late 2012 and 2013 the applicant fell behind in its BAS lodgements. By the time the outstanding BASs were lodged in 2018, approximately 4-5 years had passed since the dates for lodgement required under the GST legislation.

5.    The returns that were finally lodged brought to account GST on taxable supplies and claimed ITCs. Following an audit, the Commissioner issued amended assessments disallowing the ITCs on the basis that any entitlement to ITCs was extinguished by s 93-5, as discussed below. It is the Commissioner’s decision disallowing the applicant’s objection to the amended assessments that is before the Tribunal for review.

3    As the Tribunal noted in footnote [3] of its reasons, the due date for the business activity statements as tabulated reflects a limited concession granted to the applicant from what otherwise would have been the due dates for lodgement of a business activity statement or, as s 31-8 of the GST Act terms it, a GST return as set out in s 31-8(1) of the GST Act.

4    Although the business activity statements lodged by the applicant claimed input tax credits, the claiming of those input tax credits did not survive subsequent scrutiny by the Commissioner after an audit of the applicant’s business.

5    A sequel to that audit was that the Commissioner issued amended assessments disallowing the input tax credits. The Commissioner did this because the Commissioner considered that the applicant’s right to claim those input tax credits had been extinguished by s 93-5 of the GST Act. The applicant objected against these amended assessments. The Commissioner’s objection decision was to affirm the amended assessments. The applicant then sought the review of the Commissioner’s decision by the Tribunal under Pt IVC of the TAA.

6    On 28 August 2025, for reasons then given in writing, the Tribunal decided to affirm the Commissioner’s objection decision. The applicant has now invoked this Court’s original jurisdiction by way of an appeal on a question of law against the Tribunal’s decision. As amended, the questions of law as specified in the notice of appeal are:

1.    Did the Tribunal err:

(1)    …

(2)    by finding that the four year limitation period in section 93-5(1) of the GST Act , barred the Tribunal, when deciding the Applicant’s objection under Part IVC of the Taxation Administration Act 1953 (TAA 1953) to an assessment made in respect of BAS lodged outside the section 93-5 of the GST Act four year limitation period, from allowing ITCs claimed in those BAS (paragraphs 26 to 31 of the Reasons); and

(3)    by not following the seriously considered dicta of Moshinsky J in Coles Supermarkets Australia Pty Ltd v Commissioner of Taxation [2019] FCA 1582 (Coles).

7    The related grounds of appeal as specified in the amended notice are as follows:

The operation of section 93-5 during Part IVC review and the seriously considered dicta of Moshinsky J in Coles

10.    Moshinsky J in Coles at [139] stated:

there is a persuasive argument that: s 47-5 is intended to prevent an ongoing entitlement to claim credits in a later return where a return has not been lodged or credits not claimed; Div 155 of Sch 1 to the Tax Administration Act provides for a separate dispute resolution mechanism (i.e. objection and review) once a return has been lodged or a default assessment issued; and once a return has been lodged and objected to, there is no scope for the operation of s 47-5 to disentitle a taxpayer to fuel tax credits . . . Acceptance of the Commissioner’s submissions would present the difficulty that a taxpayer could lawfully object to an assessment and find that, when a court came to consider the matter outside of the four-year period, an entitlement to a fuel tax credit would be denied, notwithstanding that the credit was attributable to the period to which the assessment and objection related. For example, it may be that, in relation to a contentious issue concerning a fuel tax credit, a taxpayer wishes to self-assess on the basis of the Commissioner’s position on the issue, and then object against the deemed assessment. In this scenario, if the Commissioner’s submissions are correct, the taxpayer’s entitlement to the fuel tax credit would depend on whether or not the matter was determined (by the Commissioner or on review or appeal) within the four year period. Thus, while I accept that s 47-5 is expressed in unqualified terms, consideration of the legislative history, including that it was introduced during the period when a self-actuating system applied, is generally supportive of Coles’s contention.

11.    It was accepted by the Tribunal that Moshinsky J’s seriously considered dicta referring to section 47-5 of the Fuel Tax Act 2006 applies equally to section 93-5 of the GST Act.

12.    The Tribunal reasoned at paragraph 29 of the Reasons that:

Taken literally, Moshinsky J’s observations suggest that s 47-5, and therefore s 93-5, have no role to play once an objection claiming the credits has been lodged within the statutory time for objections. However, notwithstanding the points made in Mr Young’s submissions, there is no escaping the fact that his Honour’s observations do not extend to considering whether on a proper construction s 47-5 would not deny an entitlement to credits raised in an objection where claiming the credits would have been denied when the relevant returns were lodged. That is not the circumstance that arose in the Coles case and nor was that circumstance addressed by his Honour.

13.    The Tribunal accepted at paragraph 28 that the “objection in this case was lodged within the statutory time limit for objections”.

14.    The Tribunal accepted at paragraph 29 that by taking Moshinsky J’s seriously considered dicta literally, the section 93-5 of the GST Act limitation would not disentitle the Applicant to ITCs for the Relevant Periods on objection.

15.    The Tribunal, however, did not follow Moshinsky J’s seriously considered dicta.

16.    The Tribunal erred by rejecting Moshinsky J’s seriously considered dicta as authoritative in the Applicant’s case on the belief that Moshinsky J would have arrived at a different view if presented with the facts of this case.

[emphasis in original]

8    In the course of oral submissions, Mr Young, counsel for the applicant, accepted that, ultimately, the question at large was whether the Tribunal had misconstrued s 93-5 of the GST Act in the context before it on the facts. Those facts materially included: business activity statements lodged outside the prescribed four-year period but amended assessments which disallowed claims for input tax credits; an objection which affirmed those amended assessments; and a consequential review application to the Tribunal.

9    It would matter not if the Tribunal’s construction of s 93-5 of the GST Act was at odds with dicta found in Coles Supermarkets Australia Pty Ltd v Commissioner of Taxation [2019] FCA 1582 (Coles Supermarkets) if, in point of law, the Tribunal’s construction was correct. Hence, whether the Tribunal should or should not have followed the dicta in that case is something of a distraction, which is not to say that it is irrelevant to have regard to those dicta in considering the fate of this appeal.

10    One way of disposing of the appeal would be to state that I consider that it should be dismissed for the reasons given by the Tribunal, but so to do would not do justice to the submissions carefully made by Mr Young for the applicant or, for that matter, by Mr McMillan KC and Mr Byrne for the Commissioner.

11    It is necessary to start with the text of s 93-5 of the GST Act:

Time limit on entitlements to input tax credits

(1)    You cease to be entitled to an input tax credit for a * creditable acquisition to the extent that the input tax credit has not been taken into account, in an * assessment of a * net amount of yours, during the period of 4 years after the day on which you were required to give to the Commissioner a * GST return for the tax period to which the input tax credit would be attributable under subsection 29 - 10(1) or (2).

Note:    Section 93 - 10 sets out circumstances in which your entitlement to the input tax credit does not cease under this section.

(2)     This section has effect despite section 11 - 20 (which is about entitlement to input tax credits).

Note:     You must hold a valid tax invoice relating to a creditable acquisition to be entitled to have an input tax credit for that acquisition taken into account in working out your assessed net amount for a tax period: see subsection 29 - 10(3).

12    On its face, s 93-5 of the GST Act has a temporal focal point with respect to eligibility to claim an input tax credit. That temporal focal point is the taking into account of the input tax credit in an assessment of the net amount of a given person during the period of four years after the day on which that person was required to give to the Commissioner a GST return for the tax period to which the input tax credit would be applicable. There are some exceptions to that temporal focal point. These are found in s 93-10 of the GST Act. None of these is presently relevant.

13    What is put is that, upon the application to the Tribunal for the review of the objection decision in respect of the amended assessments, it became part of the permissible remit of the Tribunal in reviewing the objection decision to determine whether there was an entitlement to the input tax credits or, put another way, that it remained open for the applicant to press a case that it had, notwithstanding when it had lodged its business activity statements, an entitlement to those input tax credits. Support for this proposition was said to be found, as it was before the Tribunal, in the judgment of Moshinsky J in Coles Supermarkets.

14    His Honour was concerned there not with the GST Act but with materially identical provisions in the Fuel Tax Act 2006 (Cth) (Fuel Tax Act). Regard to the Tribunal’s reasons discloses that the Tribunal was very much aware of his Honour’s judgment in Coles Supermarkets and of the position that an administrator such as is the Tribunal would ordinarily follow a seriously considered, albeit obiter, statement made by a judge exercising the judicial power of the Commonwealth in relation to a provision which fell for consideration in a Tribunal proceeding.

15    However, the Tribunal member, as I do, concluded that the circumstances against which Coles Supermarkets was decided were materially different to the present. That difference does not lie in the difference between the initial deemed assessments which occurred under the GST Act upon the lodging of the business activity statements by the applicant as opposed to the circumstance of primary assessments in respect of fuel tax which formed the background in Coles Supermarkets. Rather, the difference lies in the position that the input tax credits in the returns of the applicant in respect of its GST liability were first claimed after the relevant four-year period. That is not a feature of the equivalent facts in Coles Supermarkets. Further, in Coles Supermarkets, the Commissioner advanced a submission as to the interplay between the Fuel Tax Act and Pt IVC of the TAA, which he does not advance in the present proceedings.

16    In Coles Supermarkets, the Commissioner’s position was that even though the four-year period had not relevantly expired at assessment time, it had by the time of later challenge expired with the effect that it was no longer possible to allow the claim made by Coles Supermarkets. I agree with the Commissioner’s submission in the present case that one needs to read the statements made by Moshinsky J in Coles Supermarkets with these distinguishing features in mind.

17    The submission made by Coles Supermarkets included, as set out at paragraph 134 of Moshinsky J’s reasons for judgment the following:

134    Coles further submits that: read in the context of a statutory scheme which initially provided for an unlimited recovery period for fuel tax credits but not fuel tax liabilities, and then a four-year period in which credits and liabilities could be recovered via self-actuated returns that were lodged and then potentially objected to, the correct reading of s 47-5 is that:

(a)     section 47-5 is intended to prevent an ongoing entitlement to claim credits in a later return where a return has not been lodged or credits not claimed;

(b)     Div 155 of Sch 1 to the Tax Administration Act provides for a separate dispute resolution mechanism (i.e. objection and review) once a return has been lodged or a default assessment issued; and

(c)     once a return has been lodged and objected to, there is no scope for the operation of s 47-5 to disentitle a taxpayer to fuel tax credits as the rights of the Commissioner and the taxpayer are, relevantly, preserved and protected by ss 14ZY, 14ZZP and 14ZZQ of the Tax Administration Act and s 155-60 of Sch 1 to that Act. See also the Explanatory Memorandum accompanying the Indirect Tax Laws Amendment (Assessment) Bill 2012 at [1.29], [1.81], [1.113].

18    It was against that background that Moshinsky J made the observations he did at [139]:

139    Coles’s second contention is that s 47-5 of the Fuel Tax Act, when understood in its historical context, is designed to place a four-year limit on the process of claiming a fuel tax credit in a later fuel tax return (the situation dealt with in s 65-5(4)); and that s 47-5 is not intended to affect the objection and appeal processes dealt with in Pt IVC of the Tax Administration Act. In my view, there is some force in this contention. For the reasons given by Coles in its submissions, summarised above, there is a persuasive argument that: s 47-5 is intended to prevent an ongoing entitlement to claim credits in a later return where a return has not been lodged or credits not claimed; Div 155 of Sch 1 to the Tax Administration Act provides for a separate dispute resolution mechanism (i.e. objection and review) once a return has been lodged or a default assessment issued; and once a return has been lodged and objected to, there is no scope for the operation of s 47-5 to disentitle a taxpayer to fuel tax credits as the rights of the Commissioner and the taxpayer are, relevantly, preserved and protected by ss 14ZY, 14ZZP and 14ZZQ of the Tax Administration Act and s 155-60 of Sch 1 to that Act. Acceptance of the Commissioner’s submissions would present the difficulty that a taxpayer could lawfully object to an assessment and find that, when a court came to consider the matter outside of the four-year period, an entitlement to a fuel tax credit would be denied, notwithstanding that the credit was attributable to the period to which the assessment and objection related. For example, it may be that, in relation to a contentious issue concerning a fuel tax credit, a taxpayer wishes to self-assess on the basis of the Commissioner’s position on the issue, and then object against the deemed assessment. In this scenario, if the Commissioner’s submissions are correct, the taxpayer’s entitlement to the fuel tax credit would depend on whether or not the matter was determined (by the Commissioner or on review or appeal) within the four year period. Thus, while I accept that s 47-5 is expressed in unqualified terms, consideration of the legislative history, including that it was introduced during the period when a self-actuating system applied, is generally supportive of Coles’s contention.

19    There is nothing in Coles Supermarkets which, in the circumstances before the Tribunal in the present case, obliged it to hold in deference a considered view expressed in Coles supermarkets that the applicant was entitled to claim input tax credits.

20    In the course of an exchange with counsel during oral submissions, I raised for consideration whether an answer to the conundrum presented by how s 93-5 of the GST Act operated in circumstances such as the present where there had been a review application under Pt IVC to the Tribunal could be found in Esber v Commonwealth of Australia (1992) 174 CLR 430 (Esber). Esber concerned not a temporally limited right, but rather a right in a statute which had been repealed, albeit also against the background of an application for review of a decision which had denied an assertion of a right under the repealed Act.

21    The relevance for present purposes of Esber lies in the dissenting judgment of Brennan J in which his Honour considered the general position which prevails in the Tribunal when the Tribunal reviews a decision but the applicable law has changed prior to the Tribunal making its decision. It is not necessary to explore in detail the reasoning of Brennan J in Esber. That is because, very recently, that reasoning has in turn been considered by a unanimous Full Court of the High Court in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2025) 281 CLR 327 (Khalil).

22    In that case, the High Court addressed the general principle that attended review by the then Administrative Appeals Tribunal under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) of a particular administrative decision. Section 43 of the AAT Act is an exact predecessor of the present s 54 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). So, what is stated in Khalil is of enduring relevance.

23    The relevant passage, though lengthy, is desirably cited, given the issue in this case:

The general principle

15    The power conferred on the Tribunal by s 43(1) of the AAT Act to exercise “all the powers and discretions that are conferred by any relevant enactment” on the original decision-maker indicated that the Tribunal’s task was to apply the laws governing the exercise of powers and discretions in force at the time of the Tribunal’s decision. Thus, as stated by Brennan J in Esber v The Commonwealth, “[w]here, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time”. His Honour cited Re Costello and Secretary, Department of Transport , in which the Tribunal applied air navigation orders that governed a statutory power to issue a pilot’s licence which were in force at the time of the Tribunal’s decision, rather than the previous orders in force at the time of the decision under review.

16    The principle stated by Brennan J in Esber is consistent with the general principle stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd that “an administrative decision-maker is required to make [their] decision on the basis of material available to [them] at the time the decision is made”. His Honour explained that principle as a “reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker”.

17    Thus, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002, Gaudron and Kirby JJ considered it “well settled” that a review body invested with a review power similar to that conferred by s 43(1) “is required, in conducting that review, to apply the law as it stands at the date of the review”.

18    Similarly, in Shi v Migration Agents Registration Authority, Kirby J applied Mason J’s reasoning in Peko-Wallsend to conclude that the “merits review” provided for by the AAT Act was to be conducted on the basis of the most up to date evidence available. His Honour concluded:

“[I]t necessarily follows that the Tribunal is able to utilise all of the powers enjoyed by the Authority at the time the Tribunal makes its decision, including powers that may have accrued to the Authority in the interval of time since the original decision was made. So much follows not only from general principles governing the accretion of powers affecting dispositions of bodies such as the Tribunal but also from the power of ‘substitution’ granted by s 43(1)(c)(i) of the AAT Act.”

19    In Shi, Hayne and Heydon JJ likewise considered that, where nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent’s fitness to provide immigration assistance was to be assessed, the question for the Tribunal invited attention to the state of affairs as they existed at the time the Tribunal made its decision. To the extent that the dissenting reasons of Kiefel J can be read as stating that the Tribunal was ordinarily required to apply the law as it stood at the time of the decision under review, her Honour’s reasons must be rejected as inconsistent with those of the majority.

20    Frugtniet v Australian Securities and Investments Commission is not authority contrary to the proposition stated by Brennan J in Esber. That case did not involve a repeal or amendment of the law applied by the original decision-maker, but rather the different question of whether the Tribunal’s powers extended to considering spent convictions that the original decision-maker was prohibited from considering. The obiter statement by three of the Justices in Frugtniet, that the Tribunal “should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision”, is not replicated in the judgment of the other four Justices and is incorrect.

21    The principle that the Tribunal was to apply the laws governing the exercise of powers and discretions in force at the time of the Tribunal’s decision may be displaced by a provision of an enactment excluding or modifying s 43(1) of the AAT Act, as contemplated by s 25(6) of that Act. If not displaced, the principle requires the Tribunal to apply all relevant laws in force at the time of the Tribunal’s decision including any relevant saving or transitional provision.

[footnote references omitted]

24    At first blush, one might be forgiven for thinking that what is stated in this discussion of the general principle would lead to a position where even if the input tax credit had been taken into account in an assessment in the relevant four-year period but that period had later expired prior to the Tribunal’s decision, the Tribunal would be obliged to find that the credits were no longer eligible for claiming. But that, in my view, is not the way in which that statement of general principle is to be read.

25    At [15] and after referring to Brennan J’s judgment in Esber, the High Court noted that his Honour had cited, with approval, an earlier decision of the Tribunal, Re Costello v Secretary, Department of Transport (1979) 2 ALD 934 (Re Costello). That reference demonstrates that Re Costello is an enduringly important case concerning the law which the Tribunal must apply in hearing and determining a particular review application.

26    The relevant passage in Re Costello is found at 943 to 944:

… it seems to us that the question as to the law to be applied by the Tribunal must be resolved by having regard:

(i)    to the nature of the decision under review; and

(ii)     to the provisions of the legislation by which the change in the law is effected (cf Quilter v Mapleson (1882) 9 QBD 672).

The nature of the decision under review may require the Tribunal to consider the facts and circumstances before it in the light of the law at some anterior date in order to form an opinion as to the accrued rights or liabilities of the applicant (see, for example, s 132 of the Customs Act 1901 as to liability for customs duty). A subsequent change in the law will not affect the matter unless it is expressed to apply retrospectively (cf Quilter v Mapleson, supra). Examples of two decisions given by the Tribunal where the relevant legislation was amended with retrospective effect between the date of the decision under review and the date of the Tribunal’s decision, are Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374 and Re Shelton and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 574. In both cases the law as retrospectively amended was applied.

But where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege, we have concluded that, unless the amending the law otherwise provides we should apply the law as amended as at the date of our decision.

27    The relevant point for present purposes flows from the text of s 93-5 of the GST Act. Once an input tax credit is taken into account, or should have been in respect of an assessment made or deemed to have been made within the specified four-year period, there is an accrued right. What occurs then, if the decision is affirmed or affirmed in a way that still leads to dissatisfaction on a subsequent review by the Tribunal, exercising a materially unaffected jurisdiction as specified in s 54 of the ART Act is not an investigation in respect of a right but rather a determination as to whether that accrued right or alleged accrued right is indeed allowable in law.

28    The applicant’s obligation in circumstances where the assessment concerned either took it into account or did not take into account in sufficient amount, or failed to take it into account, is to prove the assessment excessive: see s 14ZZK of the TAA. It matters not at the Tribunal review stage that more than four years may have passed. What matters is that there was an accrued right within the relevant four-year period.

29    I expressly refrain, because it is not necessary in order to resolve the present case to decide the point whether that same position would prevail where the taxpayer concerned chooses, perhaps because of a prevailing public ruling of the Commissioner, to omit an input tax credit from a business activity statement (and thus deemed assessment), but then within the four-year period immediately objects. I may be that there is also a right on subsequent Tribunal review to determine whether the input tax credit should have been allowed. But I refrain from reaching any final conclusion on that point.

30    The position in the present case is that there was neither assessment nor objection within any of the prevailing four-year periods. The applicant claimed outside that period an input tax credit. All that the Commissioner did in amending the assessment so as to disallow the input tax credit concerned was to give effect to the language of s 93-5. The time having expired, the right to the input tax credit ceased. In turn, all that the objection decision did in affirming it was to recognise that position.

31    The Tribunal’s role in reviewing the objection decision did not entail any revival of the right to the input tax credit. Instead, all that the Tribunal did was to recognise in reviewing the objection decision that the input tax credits concerned had not been taken into account in any assessment within a prevailing four-year period. The Tribunal was correct to decide the case in that way.

32    The Tribunal’s decision was not, I note, an idiosyncratic one, although other Tribunal decisions do not bind the court. The Tribunal’s decision in the present case was consistent with a view of the operation of s 93-5 of the GST Act in its intersection with Pt IVC of the TAA as adopted in the following Tribunal cases: JHKW v Commissioner of Taxation [2022] AATA 2875; H & B Auto Repair Centre Pty Ltd v Commissioner of Taxation [2022] AATA 3561; Karagounis v Commissioner of Taxation [2024] ARTA 80.

33    The Tribunal also made reference to the explanatory memorandum in respect of the bill which became the provision s 93-5. There is a risk with an explanatory memorandum that one can end up construing the terms of the memorandum and thereby diverting one’s attention from the text adopted by Parliament. Suffice it to say the only observation I make about the explanatory memorandum is that the construction of the text adopted by the Tribunal and, in turn, by me in these reasons, is consistent with what is said of the provision in the explanatory memorandum.

34    In this instance, no different position would apply had the applicant availed itself of the alternative of the statutory appeal to this Court in its original jurisdiction against the objection decision. Sometimes, engagement of judicial power as opposed to administrative power does lead to a different focal point in respect of the law to apply, but not, I rather think, in this instance. The court would still have looked to the deemed assessments constituted by the lodgement of business activity statements, to the fact that these were out of the four-year period, and the consequence that the right to claim input tax credits had expired.

35    For these reasons, the appeal must be dismissed with costs.

Associate:    

Dated:    3 February 2026