Cancellation of an ABN

Phillip Sweeney made this Freedom of Information request to Australian Taxation Office

Australian Taxation Office did not have the information requested.

From: Phillip Sweeney

Delivered

Dear Australian Taxation Office,

I am lodging a request for information pursuant to Freedom of Information Act 1982.

Section 11 of the Act states:
"every person has a legally enforceable right to obtain access in accordance with this Act"

One does not have to establish any "identity" to apply for information and a "pseudonym" may be used.

In 1-67W2DGR the following representation was made:
"An FOI application for a superannuation fund made by any other person other than the trustee of the fund must be supported by evidence of the person's authorisation to apply on behalf of the fund"

The Australian Tax Office is claiming that "every person does not have a legally enforceable right unless they are a Trustee of a particular fund, even if the Trustee has not been lawfully appointed to the office of trustee, and is in fact a Trustee de son tort".

The documents I seek are any documents in the possession of the ATO that would confirm that Section 11 of the FOI Act does not apply to the Australian Tax Office.

That is that "every person does not have a right of access to documents held my the ATO in accordance with the ATO Act"

Yours faithfully,

Phillip Sweeney

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Ben Fairless left an annotation ()

The decision that Phillip refers to is here: https://www.righttoknow.org.au/request/8...

The original request was considered a valid FOI request, however access to the documents was refused under s.38 of the Freedom of Information Act - (Documents to which secrecy provisions of enactments apply).

The ATO is obliged to release information under the FOI Act unless an exemption applies. Documents the ATO has released in response to requests on Right to Know can be found at https://www.righttoknow.org.au/body/ato/....

The law says that information about an "entity" (such as a business, partnership, or individual for example) that is given to the Tax Office is secret, and can only be requested by someone authorised by that entity (other then a few limited exceptions). So you can't request access to the tax return for a business, or for a letter from a business or trust to the Tax Office unless you are authorised by the business or trust.

This request will likely be denied (under s.24A - documents do not exist) however the reason the documents do not exist is because the applicant has not read the law correctly, and is only reading sections of the law instead of considering the law in it's entirety.

The Applicant should make use of the Internal Review and IC review options available to him if he isn't happy with the decision. Using the FOI Act in this way appears to be designed at wasting the time of the Agency, where if the Applicant engaged with the Agency or the OAIC they would likely agree with the above.

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Phillip Sweeney left an annotation ()

The Australian Tax Office has been advised to cancel the ABN of a large superannuation fund. The ATO is refusing to release documents that advised the ATO to cancel the ABN on the basis that only the "Trustee" or someone authorised by the "Trustee" can have access to any such documents. However this pre-supposes that the purported "Trustee" is in fact the lawfully appointed Trustee of the Fund.
This Fund is one of the oldest in Australia and was established in 1913 in South Australia. The provisions of the Trustee Act 1936 (SA) require trustees of trust established in South Australia to be resident in South Australia. The ATO has not been provided with advice from a lawfully appointed Trustee resident in South Australia, but has instead been provided with advice from a purported "Trustee" resident in Victoria.

The exemption provisions should not apply where documents have been provided to the ATO in the furtherance of a Fraud

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Ben Fairless left an annotation ()

Your argument does not change the law. Laws aren't always fair, but the FOI process is designed to obtain information, not change the law.

even if the FOI officer wanted to release the information, she would be breaking the law by doing so.

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Phillip Sweeney left an annotation ()

Information contained in Tax Returns should certainly be "exempt documents" under the FOI Act if the tax return does not relate to the applicant of the FOI request. However the documents I seek are not associated with a tax return. The documents I seek relate to the cancellation of an ABN.

I have a beneficial interest in this fund and a Trustee cannot claim legal privilege against a beneficiary of the trust.

If the ABN of the fund of which I have a beneficial interest has been cancelled I should be entitled to know who did it and what reasons were given to the ATO to cancel the ABN.

Assets is a super fund are jointly owned by the Trustee and the beneficiaries of that trust. Its is nonsense to claim that beneficiaries are not entitled to documents when they are the ones paying tax and not the Trustee.

Tax returns from a trust are not "exempt" documents under the laws of trusts and are "trust documents" that the beneficiaries have a legal right to see.

They are part of the trustee's "duty to account" in relation to the administration of the trust.

However I have not requested a copy of any tax return under the FOI Act.

The law cannot be used as a cloak for fraud.

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Ben Fairless left an annotation ()

It still doesn't change the fact that an FOI request for "documents in the possession of the ATO that would confirm that Section 11 of the FOI Act does not apply to the Australian Tax Office" is not, in my opinion, the way to go about your grievance.

All of the above points could be made as part of an Internal Review, or an Information Commissioner review, or an AAT review on your original request (https://www.righttoknow.org.au/request/c....

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From: FOI
Australian Taxation Office

Dear Mr Sweeney,

Thank you for your email to the FOI mailbox. We will consider your request and respond as soon as possible. FOI requests are required to be processed within 30 days from the date we receive an application. While we aim to achieve this timeframe, certain requests that are large or involve complex issues may take longer. If this is the case we will contact you to discuss when the material can be made available. Further, unless your request is for personal information, charges may apply depending on the size and complexity of your case. We will notify you if there are charges and what those charges will be. We will obtain your consent to any additional charges before processing the request.

Regards,

FOI | General Counsel
Australian Taxation Office

ATO | Working for all Australians

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From: Phillip Sweeney

Delivered

Dear FOI,

Thank you for your reply. the last paragraph of the FOI request should read:

"That is that "every person does not have a right of access to
documents held by the ATO in accordance with the Freedom of Information Act Act"

I understand that Tax Returns are exempt documents apart from the person who lodged them. However I am not seeking information on any Tax return.

I am seeking information on a ABN of a superannuation fund of which I am a Member.

This should not be exempt information under the FOI Act.

Yours sincerely,

Phillip Sweeney

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From: Galeotti, Julie
Australian Taxation Office


Attachment SignedDecision.pdf
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Dear Mr Sweeney,

Please find enclosed my decision regarding your FOI request for documents relating to Section 11 of the FOI Act.

Regards,

Julie Galeotti
Senior Legal Officer
General Counsel
Australian Taxation Office
Phone: 03 9285 1810 | Facsimile: 03 9285 1702
Email [email address]

ATO | Working for all Australians

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Things to do with this request

Anyone:
Australian Taxation Office only: