Birdseye v Commissioner of Taxation - Appeal Extension Refused

Original Word Document (82.8 KB) Federal Court of Australia

Birdseye v Commissioner of Taxation [2026] FCA 339

| Appeal from: | Application for extension of time: Birdseye v Commissioner of Taxation (Administrative Review Tribunal, No. 2025/2942, Decision dated 10 October 2025) |
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| File number: | SAD 3 of 2026 |
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| Judgment of: | CHARLESWORTH J |
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| Date of judgment: | 17 March 2026 |
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| Date of publication of reasons: | 24 March 2026 |
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| Catchwords: | ADMINISTRATIVE LAW – powers of review of the Administrative Review Tribunal – whether the Tribunal has jurisdiction to review a decision of the Commissioner of Taxation to vote against a corporate restructure plan proposed under Pt 5.3B of the Corporations Act 2001 (Cth) and Pt 5.3B of the Corporations Regulations 2001 (Cth) – Tribunal concluding the decision was not reviewable – proposed appeal from Tribunal’s decision having no reasonable prospects of success – application for an extension of time to appeal from Tribunal’s decision refused |
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| Legislation: | Administrative Review Tribunal Act 2024 (Cth) ss 11, 12, 97, 102

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Corporations Act 2001 (Cth)

Income Tax Assessment Act 1997 (Cth)

Taxation Administration Act 1953 (Cth) ss 14ZL, 14ZO, 14ZZ, 14ZZA

Corporations Regulations 2001 (Cth)

Federal Court Rules 2011 (Cth) r 4.01 |
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| Cases cited: | Birdseye v Commissioner of Taxation (Administrative Review Tribunal, No. 2025/2942, Decision dated 10 October 2025)

Franich v Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] FCA 1362 |
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| Division: | General Division |
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| Registry: | South Australia |
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| National Practice Area: | Taxation |
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| Number of paragraphs: | 30 |
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| Date of hearing: | 17 March 2026 |
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| Counsel for the Applicants: | The First Applicant appeared in person representing the First and Second Applicants |
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| Counsel for the Respondent: | Mr W Vuong |
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| Solicitor for the Respondent: | Australian Government Solicitor |
ORDERS

| | | SAD 3 of 2026 |
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| BETWEEN: | NICHOLAS BIRDSEYE

First Applicant

CLAIM IT FINANCIAL PLANNING PTY LTD

Second Applicant | |
| AND: | COMMISSIONER OF TAXATION

Respondent | |

| order made by: | CHARLESWORTH J |
| DATE OF ORDER: | 17 MARCH 2026 |
THE COURT NOTES THAT:

A. For the purposes of r 4.01(2) of the Federal Court Rules 2011 (Cth), the second applicant was granted conditional leave to be represented by the first applicant (a non-lawyer).

THE COURT ORDERS THAT:

1. The originating application is dismissed.

2. The applicants are to pay the costs of the respondent of and incidental to the originating application, such costs to be agreed or, in the absence of agreement, assessed by a Registrar on a lump sum basis.

3. The period in which the applicants may apply for leave to appeal from these orders is extended so as to commence on the date that the Court provides a transcript of the oral reasons for judgment delivered today.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1 This application was dismissed by an order made on 17 March 2026. Oral reasons were given on that day. These written reasons are revised from the transcript.

2 The first applicant, Mr Nicholas Birdseye, made an application to the Administrative Review Tribunal for review of a decision of the respondent, the Commissioner of Taxation. The Tribunal dismissed that application under s 97 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) on the basis that the Commissioner’s decision was not reviewable. I will refer to that as the s 97 Decision.

3 Mr Birdseye then made an application under s 102(5) of the ART Act for reinstatement of his application for review. Section 102(6) provides:

If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.

4 The Tribunal concluded that the s 97 Decision was not made in error and so dismissed the application for reinstatement: Birdseye v Commissioner of Taxation (Administrative Review Tribunal, No. 2025/2942, Decision dated 10 October 2025). I will refer to that as the s 102 Decision.

5 This is Mr Birdseye’s application for an extension of time in which to commence an appeal from the s 102 Decision. The application was filed two months after the expiry of the time in which an appeal should be commenced.

6 The second applicant, Claim It Financial Planning Pty Ltd, is a company of which Mr Birdseye is a director. The s 102 Decision does not name Claim It as an applicant. It is only an applicant for review that may commence an appeal from a decision of the Tribunal. At the commencement of the hearing, the parties acknowledged that the Court should proceed to hear Mr Birdseye’s submissions on the basis that no different or additional submissions would be made on the company’s behalf. It is therefore unnecessary to resolve any doubt as to whether Claim It has standing to appeal.

7 The principles guiding the Court’s discretion to extend the time to commence an appeal were discussed by McKerracher J in Franich v Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] FCA 1362 (at [20]). Among other things, the Court may have regard to the prejudice the applicant may suffer if the extension of time were not granted and the adequacy of any explanation for the delay.

8 I have had regard to the reasons for the delay. They relate to efforts by Mr Birdseye to satisfy the Registry that he qualified for fee exemptions when lodging the initiating papers.

9 The Commissioner opposes the application on the basis that the proposed appeal has no real prospects of success because the Tribunal was plainly correct to conclude that the Commissioner’s decision was not reviewable. I proceed on the basis that an extension of time should be granted if Mr Birdseye can show that there is some arguable basis to find that the s 102 Decision is affected by an error of law.

10 The Commissioner’s decision arose as follows:

(1) in 2024, Claim It took steps to invoke a small business debt restructuring process under Pt 5.3B of the Corporations Act 2001 (Cth) and Pt 5.3B of the Corporations Regulations 2001 (Cth);

(2) in order for a proposed restructuring plan to be implemented, it must be accepted by a vote of the majority in value of creditors;

(3) the Commissioner is the majority in value creditor of Claim It;

(4) Claim It put a restructuring plan to its creditors;

(5) the Commissioner voted against the plan; and

(6) the Commissioner provided brief written reasons for doing so on 4 November 2024.

11 In its reasons for the s 102 Decision, the Tribunal confirmed that it may review “reviewable decisions” in accordance with s 11 of the ART Act. Under s 12 of the ART Act a “reviewable decision” arises if an Act or legislative instrument provides for the application to be made to the Tribunal for review of the relevant decision. The Tribunal then turned to consider the statutory provisions Mr Birdseye had relied upon as conferring review powers in connection with the Commissioner’s decision to vote against the restructuring plan.

12 Relevantly, the Tribunal said that there were provisions contained in the Taxation Administration Act 1953 (Cth) and the Income Tax Assessment Act 1997 (Cth) culminating in reviewable decisions concerning a person’s tax affairs, but the Commissioner’s decision did not fall within those provisions.

13 The Tribunal went on to say that neither the Corporations Act nor the Regulations conferred on it the power to review the Commissioner’s decision to vote against the restructure plan.

The proposed appeal has no prospects of success

14 The Tribunal was correct to identify that the sources of its jurisdiction are to be found in statutes that confer review powers upon it. That is the effect of s 12 of the ART Act.

15 At the hearing of this application, Mr Birdseye was invited to identify the statutory provision upon which he relied as the source of the Tribunal’s power to review the decision of the Commissioner to vote against the restructure.

16 Mr Birdseye referred to ss 14ZL, 14ZO, 14ZZ within Pt 4C of the Tax Administration Act.

17 Section 14ZL has the heading “Part applies to taxation objections”. It provides:

(1)    This Part applies if a provision of an Act or a legislative instrument (including the provision as applied by another Act) provides that a person who is dissatisfied with an assessment, determination, notice or decision, or with a failure to make a private ruling, may object against it in the manner set out in this Part.

(2)    Such an objection is in this Part called a taxation objection.

18 It may be accepted that Mr Birdseye is dissatisfied with the Commissioner’s decision. However, that is not sufficient for Pt 4C to apply.

19 The effect of s 14ZL is that in order for the processes under Pt 4C to apply, there must be a provision of an Act or a legislative instrument enabling a person to object to (relevantly) a decision that a person is dissatisfied with.

20 Section 14ZO is headed “Division 4 – Tribunal review”. It states:

Division 4 contains provisions about applications to the Tribunal for review of decisions by the Commissioner in relation to certain taxation objections and requests for extension of time.

21 The phrase “taxation objections” in that provision takes its meaning from s 14ZL(2). It does not operate to confer power on the Tribunal to review the Commissioner’s decision. That is because when voting against the restructuring plan, the Commissioner did not make a “decision in relation to” a “taxation objection”.

22 Section 14ZZ is headed “Person may seek review of, or appeal against, Commissioner’s decision”. Subsections (1) and (2) are as follows:

(1)    If the person is dissatisfied with the Commissioner’s objection decision (including a decision under paragraph 14ZY(1A)(b) to make a different private ruling), the person may:

(a)    if the decision is a reviewable objection decision—either:

(i)    apply to the Tribunal for review of the decision; or

(ii)    appeal to the Federal Court against the decision; or (b) otherwise—appeal to the Federal Court against the decision.

(2)    Treat a reference in subsection (1) to appealing to the Federal Court as being a reference to appealing to a designated court (within the meaning of the Australian Charities and Not-for-profits Commission Act 2012) if:

(a)    the person may appeal to the designated court against an objection decision under that Act (the ACNC objection decision); and

(b)    the objection decision mentioned in subsection (1) (the taxation objection decision) and the ACNC objection decision are related, or it would be efficient for the designated court to consider the decisions together.

Note: In the Australian Charities and Not-for-profits Commission Act 2012, designated court means the Federal Court of Australia or a Supreme Court of a State or Territory that has jurisdiction in relation to matters arising under that Act.

23 The phrase “the decision” in subs (1)(a)(i) must be read in the context of the opening words. Section 14ZZ confers a power on the Tribunal to review an objection decision.

24 The Commissioner’s decision does not meet that description. In summary, an objection decision is a decision made by the Commissioner in dealing with a taxation objection as defined in s 14ZL(2). In voting against the restructuring plan, the Commissioner was not making a objection decision within the meaning of s 14ZZ, because the Commissioner was not responding to a taxation objection within the meaning of s 14ZL(2).

25 At the hearing of this application, Mr Birdseye did not seek to argue that the Tribunal was in error in what it said about the Income Tax Assessment Act provisions. On that topic, the Tribunal reasoned as follows (at [23]):

Finally, Mr Birdseye’s efforts to try and link this matter to subdivision 328-G of the Income Tax Assessment Act 1997 (Cth) and to Law Companion Ruling LCR 2016/2 Small Business Restructure Ro ll -over: consequences of a roll-over are misguided. The decision the Commissioner made that he wishes to review was to reject the restructuring plan. That decision is not made under subdivision 328-G of the Income Tax Assessment Act 1997 (Cth). It is made under the Regulations. Further, if Mr Birdseye wanted to challenge a decision by the Commissioner that was made under subdivision 328-G he needed to participate in an objection process with the Commissioner first, and cannot simply apply to the Tribunal without there being a reviewable objection decision. In any event, it seems unlikely that a reviewable decision was made by the Commissioner under subdivision 328-G of the Income Tax Assessment Act 1997 (Cth) as the restructuring plan did not proceed.

26 There is no reasonable basis to argue that the Tribunal erred in that conclusion. It is the same conclusion reached in connection with the Taxation Administration Act. In order for there to be a power of review, in either statutory context there must first be a decision meeting the description of an “objection decision”.

27 Mr Birdseye’s submissions otherwise raised arguments that might be made in support of grounds of review or appeal. For example, he argued that the Commissioner had not acted in the public interest, as the Commissioner was required to act under taxation law more generally. It is not necessary to consider those submissions for the purpose of determining the present application. The singular issue before me is not whether the Commissioner should not have made the decision to vote against the restructuring plan; the question is whether there is a tenable basis to argue that the Tribunal erred in concluding that it did not have the power to review that decision.

28 Finally, I should observe that Mr Birdseye’s submissions repeatedly raised that there was no tangible written record of a decision made by the Tribunal at the time of the s 97 Decision, and that it was only later recorded in writing by the Commissioner. He has not demonstrated on this application that the Tribunal misunderstood the subject matter of Mr Birdseye’s complaint. It has not been shown that the s 97 Decision was incorrectly summarised in the reasons for the s 102 Decision. As stated there, the s 97 Decision was to the effect that the Tribunal did not have the jurisdiction to review a decision to vote against a restructuring plan under Pt 5B of the Regulations. Whether or not that decision took the form of a tangible written document at that time cannot assist Mr Birdseye on this application.

29 Mr Birdseye made no attempt to commence an application for judicial review of the Commissioner’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or otherwise. Rather, he sought to invoke the Tribunal’s jurisdiction to conduct a review of the Commissioner’s decision on the merits. The Tribunal had no choice as to whether or not it would review the decision: it either had jurisdiction or it did not. By the s 97 Decision it correctly concluded that it did not. Accordingly, the s 102 Decision is not affected by any arguable error.

30 The consequence is that the refusal of an extension of time in which to appeal would cause no prejudice to either Mr Birdseye or Claim It as the proposed appeal cannot succeed.

| I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. |
Associate:

Dated: 17 March 2026

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