Australian Taxation Office Definitions

Ben Garrett made this Freedom of Information request to Australian Taxation Office

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Australian Taxation Office did not have the information requested.

Dear Australian Taxation Office,

I Hereby request under the freedom of Information Act 1982 the following information,

(a) Existing documents containing the Australian Taxation Office definition of “person”.

(b) Existing documents containing the Australian Taxation Office definition of “income”.

I also make the application that all costs for the processing of this request be waived on Public interest grounds in accordance with section 29 of the FOI Act, being that it would be in the general public interest or in the interest of a substantial section of the public.

Yours faithfully,

Benjamin Garrett
President & Secretary
Read Your Constitution Organisation

FOI, Australian Taxation Office

Dear Mr Garrett

Thank you for your request dated 26 August 2013 seeking access to
documents containing the Australian Taxation Office definition of
"person" and "income". We need some further information from you to
allow us to clearly identify the documents you are seeking, for example
are you requesting legislative definitions?

I would like to discuss your request with you if possible. It may be
easier for us to discuss by phone, you can contact me directly at
[ATO request email] to provide a contact number.

Regards

__________________________
FOI
General Counsel
Australian Taxation Office

-----Original Message-----
From: Ben Garrett [mailto:[FOI #365 email]]
Sent: Monday, 26 August 2013 07:19
To: FOI
Subject: Freedom of Information request - Australian Taxation Office
Definitions

Dear Australian Taxation Office,

I Hereby request under the freedom of Information Act 1982 the
following information,

(a) Existing documents containing the Australian Taxation Office
definition of "person".

(b) Existing documents containing the Australian Taxation Office
definition of "income".

I also make the application that all costs for the processing of
this request be waived on Public interest grounds in accordance
with section 29 of the FOI Act, being that it would be in the
general public interest or in the interest of a substantial section
of the public.

Yours faithfully,

Benjamin Garrett
President & Secretary
Read Your Constitution Organisation

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using this form:
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**********************************************************************
IMPORTANT
The information transmitted is for the use of the intended
recipient only and may contain confidential and/or legally
privileged material. Any review, re-transmission, disclosure,
dissemination or other use of, or taking of any action in
reliance upon, this information by persons or entities other
than the intended recipient is prohibited and may result in
severe penalties. If you have received this e-mail in error
please notify the Privacy Hotline of the Australian Taxation
Office, telephone 13 2869 and delete all copies of this
transmission together with any attachments.
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hide quoted sections

Dear Australian Taxation Office,

Thank you for your reply, as an example section 995.1 of the Income Tax Assessment Act 1997 contains the following, ("person" includes a company) although it does not define “person”

I request access to existing documents containing the Australian Taxation Office definition of
"person" and "income" either legislative or other.

I thank you for your offer to enter into discussions via phone, although due to my work commitments it is more convenient for me to correspond via email.

Yours faithfully

Mr Benjamin Garrett
President and Secretary
Read Your Constitution Organisation

FOI, Australian Taxation Office

Dear Mr Garrett

You have requested access to existing documents containing the
Australian Taxation Office definition of "person" and "income" either
legislative or other. We are still uncertain as to what documents you
are requesting.

If you are seeking access to legislation and ATO consideration of the
law, you may wish to access the ATO Legal Database. The database
contains legal and policy information on material such as ATO
Interpretative Decisions, Public Rulings and Determinations and
Legislative Determinations. This information is available through the
following website, free of charge: http://law.ato.gov.au/

This may be able to assist you with your query or allow you to identify
the specific documents you are seeking in order to make a valid FOI
request.

Regards

__________________________
FOI
General Counsel
Australian Taxation Office

-----Original Message-----
From: Ben Garrett [mailto:[FOI #365 email]]
Sent: Tuesday, 27 August 2013 20:09
To: FOI
Subject: Re: Freedom of Information request - Australian Taxation Office
Definitions

Dear Australian Taxation Office,

Thank you for your reply, as an example section 995.1 of the Income
Tax Assessment Act 1997 contains the following, ("person" includes
a company) although it does not define "person"

I request access to existing documents containing the Australian
Taxation Office definition of
"person" and "income" either legislative or other.

I thank you for your offer to enter into discussions via phone,
although due to my work commitments it is more convenient for me to
correspond via email.

Yours faithfully

Mr Benjamin Garrett
President and Secretary
Read Your Constitution Organisation



-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #365 email]

Write your response as plain text. Only send PDF documents as a
last resort. Government guidelines make it clear that PDF is not an
acceptable format for you to use in the delivery of government
information.
http://www.righttoknow.org.au/help/offic...

Disclaimer: This message and any reply that you make will be
published on the internet. Our privacy and copyright policies:
http://www.righttoknow.org.au/help/offic...

If you find this service useful as an FOI officer, please ask your
web manager to link to us from your organisation's FOI page.

-------------------------------------------------------------------

**********************************************************************
IMPORTANT
The information transmitted is for the use of the intended
recipient only and may contain confidential and/or legally
privileged material. Any review, re-transmission, disclosure,
dissemination or other use of, or taking of any action in
reliance upon, this information by persons or entities other
than the intended recipient is prohibited and may result in
severe penalties. If you have received this e-mail in error
please notify the Privacy Hotline of the Australian Taxation
Office, telephone 13 2869 and delete all copies of this
transmission together with any attachments.
**********************************************************************

hide quoted sections

Dear Australian Taxation office,

I would like to seek clarification as to whether at this stage you are refusing my FOI request for reasons as stated in Section 24A of the Freedom of Information Act 1982. If this is not the case I wish to attempt to clarify and explain in more detail the focus of my request.

When conducting a search online for the legal definition of a person the following is provided,

“person” In general usage, a human being; by statute, however, the term can include firms, labor organisations, partnerships, associations, corporations, legal representatives, trustees, trustees in Bankruptcy, or receivers.

The information that I seek in my FOI request is whether the Australia Taxation Office has a similar definition for the word “person”. A search of the definitions provided online at (http://www.ato.gov.au/Definitions/) does not provide a definition of a ”person”, and as I have brought to your attention in previous correspondence, Section 995.1 of the Income Tax Assessment Act 1997 contains hundreds of definitions, for example

"public official" means an employee or official of an * Australian Government Agency or of a * local governing body,

"person" includes a company.

As you can see from my example, the definition of “public official” is quite thorough although the definition or lack thereof of “person” is quite vague.

Is it not true that a cardinal rule of statutory interpretation is that a word cannot be used to define itself?. That is to say, you cannot use the word “person” to define the word “person”. Assume for example, that a statute for example in this case the Income Tax Assessment Act 1936 mandates that every “person” must lodge a tax return. If the statute does not define “person”, then it will have to be interpreted if questions arise.

Therefore I wish to re scope my FOI request to the following,

I respectfully request under the Freedom of Information Act 1982,

access to existing documents containing the Australian Taxation Office statutory definition of a “person”

Yours sincerely,

Ben Garrett
President and Secretary
Read Your Constitution Organisation

Reich, Chad, Australian Taxation Office

Dear Mr Garrett,

We are not refusing your request under section 24A of the Freedom of
Information Act 1982 (the FOI Act). Instead, I do not consider your
request to be a valid request under the FOI Act.

You appear to be requesting statutory definitions of 'person'. Statutory
definitions are in legislation, and legislation is a publically
available resource. The definition of 'document' in the FOI Act
specifically excludes 'material maintained for reference purposes that
is otherwise publicly available' (section 4(1)). In my view legislation
fits this criteria. Accordingly, your request is not for documents to
which the FOI Act applies.

In our previous response we referred you to the ATO's website, where
many documents (some of which may contain discussions of definitions of
'person') are publically available and searchable. You might also try
www.austlii.edu.au, which contains searchable legislation and case law.

Regards

Chad Reich
Senior Lawyer
General Counsel
Australian Taxation Office

-----Original Message-----
From: Ben Garrett [mailto:[FOI #365 email]]
Sent: Friday, 30 August 2013 08:00
To: FOI
Subject: RE: Freedom of Information request - Australian Taxation Office
Definitions [SEC=UNCLASSIFIED]

Dear Australian Taxation office,

I would like to seek clarification as to whether at this stage you
are refusing my FOI request for reasons as stated in Section 24A of
the Freedom of Information Act 1982. If this is not the case I wish
to attempt to clarify and explain in more detail the focus of my
request.

When conducting a search online for the legal definition of a
person the following is provided,

"person" In general usage, a human being; by statute, however, the
term can include firms, labor organisations, partnerships,
associations, corporations, legal representatives, trustees,
trustees in Bankruptcy, or receivers.

The information that I seek in my FOI request is whether the
Australia Taxation Office has a similar definition for the word
"person". A search of the definitions provided online at
(http://www.ato.gov.au/Definitions/) does not provide a definition
of a "person", and as I have brought to your attention in previous
correspondence, Section 995.1 of the Income Tax Assessment Act 1997
contains hundreds of definitions, for example

"public official" means an employee or official of an * Australian
Government Agency or of a * local governing body,

"person" includes a company.

As you can see from my example, the definition of "public official"
is quite thorough although the definition or lack thereof of
"person" is quite vague.

Is it not true that a cardinal rule of statutory interpretation is
that a word cannot be used to define itself?. That is to say, you
cannot use the word "person" to define the word "person". Assume
for example, that a statute for example in this case the Income Tax
Assessment Act 1936 mandates that every "person" must lodge a tax
return. If the statute does not define "person", then it will have
to be interpreted if questions arise.

Therefore I wish to re scope my FOI request to the following,

I respectfully request under the Freedom of Information Act 1982,

access to existing documents containing the Australian Taxation
Office statutory definition of a "person"

Yours sincerely,

Ben Garrett
President and Secretary
Read Your Constitution Organisation

-----Original Message-----

Dear Mr Garrett

You have requested access to existing documents containing the
Australian Taxation Office definition of "person" and "income"
either
legislative or other. We are still uncertain as to what documents
you
are requesting.

If you are seeking access to legislation and ATO consideration of
the
law, you may wish to access the ATO Legal Database. The database
contains legal and policy information on material such as ATO
Interpretative Decisions, Public Rulings and Determinations and
Legislative Determinations. This information is available through
the
following website, free of charge: http://law.ato.gov.au/

This may be able to assist you with your query or allow you to
identify
the specific documents you are seeking in order to make a valid FOI
request.

Regards

__________________________
FOI
General Counsel
Australian Taxation Office

-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #365 email]

Write your response as plain text. Only send PDF documents as a
last resort. Government guidelines make it clear that PDF is not an
acceptable format for you to use in the delivery of government
information.
http://www.righttoknow.org.au/help/offic...

Disclaimer: This message and any reply that you make will be
published on the internet. Our privacy and copyright policies:
http://www.righttoknow.org.au/help/offic...

If you find this service useful as an FOI officer, please ask your
web manager to link to us from your organisation's FOI page.

-------------------------------------------------------------------

**********************************************************************
IMPORTANT
The information transmitted is for the use of the intended
recipient only and may contain confidential and/or legally
privileged material. Any review, re-transmission, disclosure,
dissemination or other use of, or taking of any action in
reliance upon, this information by persons or entities other
than the intended recipient is prohibited and may result in
severe penalties. If you have received this e-mail in error
please notify the Privacy Hotline of the Australian Taxation
Office, telephone 13 2869 and delete all copies of this
transmission together with any attachments.
**********************************************************************

hide quoted sections

Locutus Sum left an annotation ()

If the following is already known to you, I apologise. Perhaps another user will find it to be useful. I try to annotate on the response of the Australian Taxation Office. I also try to answer the question you asked to the ATO about the definition of "person"

In your revised request, you asked for 'access to existing documents containing the Australian Taxation Office definition of "person" and "income" either legislative or other.'

The ATO could have responded in several ways. If the ATO understood your request ("or other") to be a request for an internal ATO document regarding the definition of person, and if there is no internal document of that kind, then they would have refused your request on the basis of section 24A ("Requests may be refused if documents cannot be found, do not exist or have not been received"). The ATO said in letter of September 20, 2013 "We are not refusing your request under section 24A of the Freedom of
Information Act 1982 (the FOI Act)". Mr Chad Reich then says that he did not consider your request to be valid. I believe that there is no doubt that part of your request was valid and part of it was either invalid or would be refused for the reason I soon tell you. The request for an internal ATO document was valid but from the reply you got you can definitely believe that there is no internal document. So that part of your request should have been refused on ground of section 24A. The request for a legislative definition was possibly not valid, or possibly valid, but in any case the ATO would not give you the documents. If Mr Reich is correct to say that legislation is for reference purposes and publicly available, then he is also correct to say that section 4 of the Act means that it is not a document (!) for the Act and so you cannot use the FOI Act to get it. Mr Reich could also have told you that all legislation can be purchased for a fee and because of section 12(1)(b) or section 12(1)(c) you may not use FOI to get access. You must pay money. There is good news; as Mr Chad Reich tells you, the law is accessible on http://www.austlii.edu.au . It is also on the web with Attorney General's Department at http://www.comlaw.gov.au

From this examination, I think it is right for you to conclude that the ATO has not a special definition of "person" and that the definition is somewhere else. But where?

Three good places to start for a search for the legal meaning of person are: the common law or case law, a dictionary, and the Acts Interpretation Act, 1901 (http://www.austlii.edu.au/au/legis/cth/c...).

For the definition of "person", you need the Acts Interpretation Act, and three sections of it.
Section 2. (1) This Act applies to all Acts (including this Act). (2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention
Section 2A. This Act binds the Crown in each of its capacities.
Section 2B, Definitions. "Individual" means a natural person.
Section 2C(1). In any Act, expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual.

There is no definition of person in the taxation legislation. For the taxation legislation, a person means what the Acts Interpretation Act says that a person is. And the Acts Interpretation Act is saying that a person is what you think a person is (a "natural person" or human being) but it is also a corporation ("body corporate") or a group of people ("body politic").

It is interesting to see "person" is also important to FOI. Section 4 of the FOI Act says an applicant is a person who makes an application. Also because of the Acts Interpretation Act, an applicant person can be a body corporate or body politic. In [2011] AICmr 8 (http://www.austlii.edu.au/au/cases/cth/A...) the applicant is Baljura who is a body corporate. In [2012] AICmr 28 (http://www.austlii.edu.au/au/cases/cth/A...) the applicant is Autism Advocacy who is a group of people with a same interest, so a body politic.

It is possible to say much more about "person" and how the legislation uses the word "included" but I hope this is a start. You might consider to search in www.austlii.edu.au in Commonwealth Consolidated Acts for these words in quotation marks "means a natural person".

Sophia Wrightman left an annotation ()

Person is simply a legal image (identity) for each child of the parent governing body (e.g one per son = "person"). So you always appear in person meaning you can't actually be a person in court and legally speaking either. When answering as a person you're actually lying (claiming to be a false image) and are immediately in dishonour. Means your testimony won't be heard as a competent statement. Not exactly relevant here I know, but interesting nonetheless.