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AAT Bulletin

Issue No. 1/2015	5 January 2015
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. The Bulletin occasionally includes information on legislative changes that affect the AAT and other important developments.  
It is recommended that the Bulletin be read on-line. This has the advantage of allowing the reader to use hyperlinks to access the full text of cases and other internet sites mentioned in the Bulletin. 
The AAT does not make any representation or warranty about the accuracy, reliability, currency or completeness of any material contained in this Bulletin or on any linked site. While the AAT makes every effort to ensure that the material in the Bulletin is accurate and up-to-date, you should exercise your own independent skill and judgement before you rely on it. Information contained in this Bulletin is not legal advice and is intended as a general guide only.  You should rely on your own advice or refer to the full cases and legislation in relation to any proceedings.
Enquiries regarding this publication may be directed to aatweb@aat.gov.au. 
Contents
AAT Recent Decisions
Compensation
Customs
Immigration and Citizenship
National Disability Insurance Scheme
Practice and Procedure
Social Security
Taxation
Veterans' Affairs
Appeals
Appeals lodged
Appeals finalised
Statements of Principles
New Statements of Principles

AAT Recent Decisions
This section of the Bulletin provides information about decisions recently published by the AAT.  Only AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Compensation
Edwards and Comcare [2014] AATA 963; 24/12/2014; Senior Member BJ McCabe
Applicant’s entitlement to compensation for incapacity – Applicant’s employment terminated on grounds of incapacity – deductions made from applicant’s incapacity payment – Applicant unable to earn anything from suitable employment – decision under review set aside and substituted
Stebbing and Military Rehabilitation and Compensation Commission [2014] AATA 948; 19/12/2014; Deputy President SD Hotop
Commonwealth employees – applicant served in Royal Australian Navy (RAN) from 1972 to 1995 – applicant suffered severe coronary artery disease and myocardial infarct in September 2012 – applicant claimed compensation for heart disease in July 2013 – Tribunal not satisfied the applicant’s severe coronary artery disease contributed to, to a significant degree, or at all, by his RAN service – applicant's severe coronary artery disease not a compensable injury – decision under review affirmed
Customs
Iljin Australia Pty Ltd and Chief Executive Officer of Customs [2014] AATA 960; 23/12/2014; Senior Member E Fice
Identification of goods – use of Interpretive Rules – classification – composite goods – essential character – tariff concession order – use of Explanatory Notes – decision affirmed
Immigration and Citizenship
Tran and Minister for Immigration and Border Protection [2014] AATA 957; 22/12/2014; Senior Member G Ettinger
Eligibility – citizenship by conferral – general residence requirement – spouse of Australian citizen – long periods of absence from Australia in four years immediately before citizenship application – Applicant with Australian citizen husband overseas for his employment – discretion to treat periods of absence from Australia as ones in which Applicant was present in Australia as a permanent resident – whether Applicant had close and continuing association with Australia during periods of absence from Australia in the four years immediately before citizenship application – decision under review set aside and remitted
National Disability Insurance Scheme
ZNDV and National Disability Insurance Agency [2014] AATA 921; 25/11/2014; Deputy President K Bean and Mr I Thompson, Member
Early intervention requirements – Asperger’s disorder – reasonable and necessary supports – occupational therapy room and equipment in applicant’s home – whether support represents value for money – support not reasonable, relative to likely benefits – decision under review varied to incorporate terms of further plan agreed to by parties
Practice and Procedure
El Dirani and Secretary, Department of Social Services [2014] AATA 893; 3/12/2014; Senior Member N Isenberg
Extension of time to lodge application for review – application refused
Social Security
Andrich and Secretary, Department of Social Services [2014] AATA 953; 19/12/2014; Senior Member CR Walsh
Disability support pension (DSP) – applicant’s fully diagnosed, treated and stabilised impairment (being osteoarthritis which impacts upon his lower and upper limbs and spine) does not attract 20 points or more under the Impairment Tables on the date the applicant claimed DSP or within 13 weeks thereafter – decision under review affirmed
Bayliss and Secretary, Department of Social Services [2014] AATA 964; 24/12/2014; Dr P McDermott RFD, Senior Member and Senior Member AC Cotter
Newstart Allowance – Unpaid Present Entitlements – UPE – value of assets exceed limit – balance held in trust – UPE held to be loan for purposes of attribution – whether UPE loan, debt or otherwise – method for valuing assets – decision varied and remitted
Colbert and Secretary, Department of Social Services [2014] AATA 965; 24/12/2014; Dr P McDermott RFD, Senior Member and Senior Member AC Cotter
Pensions, benefits, allowances – disability support pension – DSP – whether 20 impairment points – decision under review affirmed
Gabath and Secretary, Department of Social Services [2014] AATA 966; 24/12/2014; Dr P McDermott RFD, Senior Member and Senior Member AC Cotter
Pensions, benefits and allowances – disability support pension – whether 20 impairment points – whether continuing inability to work – Applicant did not participate in a program of support – decision under review affirmed
Johansson and Secretary, Department of Social Services [2014] AATA 956; 22/12/2014; Mr I Thompson, Member
Disability support pension – whether applicant has a severe impairment – whether applicant has a 'continuing inability to work' – applicant has an impairment attracting 20 point rating – decision under review set aside – decision substituted that applicant entitled to payment from 16 May 2013
Nelson and Secretary, Department of Social Services [2014] AATA 954; 12/12/2014; Deputy President PE Hack SC and Senior Member AC Cotter
Disability support pension – asset-test exempt income stream – provision of actuarial certificate out of time – no fault on applicant’s behalf – no discretion to depart from guidelines – decision under review affirmed
Peel and Secretary, Department of Social Services [2014] AATA 959; 22/12/2014; Miss EA Shanahan, Member
Application for disability support pension (DSP) – anxiety and depression – alcohol dependence – s 94(1)(a) satisfied – psychiatric conditions not fully diagnosed, treated and stabilised – impairment rating not attracted – decision affirmed
Taxation
Confidential and Commissioner of Taxation [2014] AATA 952; 19/12/2014; Deputy President SA Forgie
Sale of business – capital gains tax event – whether CGT event A1 or B1 – when capital gains tax incurred
Sale of business – Contract of Sale – settlement date not met – heads of agreement – deed of licence – whether one document or separate documents – separate documents under umbrella of Contract of Sale
Whether determination of income made by trustee that nil income or no determination made so that income determined under cl 10.5 and so in accordance with net income provisions in s 95 of ITAA36 – burden of proof not satisfied
Alternative assessments – role of Tribunal limited – outside Tribunal’s role to oversee Commissioner’s actual recovery of taxation liability from taxpayers
PRACTICE AND PROCEDURE – effect of withdrawal of application 
WORDS AND PHRASES – “income of the trust estate” – “net income of the trust estate”
WORDS AND PHRASES – “present entitlement”
Confidential and Commissioner of Taxation [2014] AATA 961; 23/12/2014; Deputy President FJ Alpins 
International taxation – double taxation treaties – Australia-Ireland Double Taxation Agreement – International Tax Agreements Act 1953 (Cth) s 11K – general principles of interpretation of double taxation treaties – Irish Pay Related Social Insurance employment contributions made by Australian employee – whether Pay Related Social Insurance a tax covered by Agreement – whether a “substantially similar tax” to Irish or Australian income tax
INCOME TAX – foreign income tax offsets – ‘foreign income tax’ 
TAXATION ADMINISTRATION – private rulings – consideration by Tribunal of additional information not considered when ruling made
Veterans' Affairs
Clark and Repatriation Commission [2014] AATA 955; 22/12/2014; Senior Member G Ettinger
Disability pension – Special rate of pension – whether prevented from continuing to participate in remunerative work for more than eight hours a week due to his accepted conditions alone – loss of salary, wages or earnings suffered – decision under review set aside and substituted – Veteran is eligible for pension at the Special
Lovell and Repatriation Commission [2014] AATA 958; 22/12/2014; The Hon B Tamberlin QC, Deputy President
Partner service pension – whether applicant was receiving a social security pension immediately before the veteran’s death – decision under review affirmed
McCracken and Repatriation Commission [2014] AATA 946; 19/12/2014; Deputy President K Bean and Lt Col R Ormston (Rtd), Member
Rate of disability pension – intermediate and special rates – whether the applicant fulfils the “part-time” test – whether the applicant fulfils the “8-hour” test – whether the applicant suffered a loss of salary, wages or earnings – decision under review varied
Phillips and Repatriation Commission [2014] AATA 962; 24/12/2014; Deputy President JW Constance
Whether condition was war-caused – bipolar II disorder – whether applicant suffers condition – clinical onset of condition – Deledio principles – category 2 stressor – concerns in the work environment – decision set aside and substituted
Appeals 
This section of the Bulletin provides information about appeals against AAT decisions that have been lodged or finalised.  Only appeals in relation to AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Appeals lodged
CASE NAME | AAT reference
Grabovsky v Secretary, Department of Social Services & AAT | [2014] AATA 522
Mahaffy v AAT | 2013/5357
Appeals finalised
CASE NAME | AAT reference | court Reference
Ekinci v Civil Aviation Safety Authority | [2014] AATA 424 | [2014] FCAFC 180
Samson Maritime Pty Ltd v Aucote | [2014] AATA 296 | [2014] FCAFC 182

Statements of Principles
This section of the Bulletin provides information on recent developments in relation to Statements of Principles made by the Repatriation Medical Authority for the purposes of the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. 
New Statements of Principles
The Tribunal has been advised that the Repatriation Medical Authority has made the following new Statements of Principles. They take effect from 27 January 2015.
Malignant neoplasm of the small intestine No. 1 of 2015
Malignant neoplasm of the small intestine No. 2 of 2015
Malignant neoplasm of the testis and paratesticular tissues No. 3 of 2015
Malignant neoplasm of the testis and paratesticular tissues No. 4 of 2015
Soft tissue sarcoma No. 5 of 2015
Soft tissue sarcoma No. 6 of 2015
Epicondylitis No. 7 of 2015
Epicondylitis No. 8 of 2015
Shin splints No. 9 of 2015
Shin splints No. 10 of 2015
Tinea No. 11 of 2015
Tina No. 12 of 2015
Decompression sickness No. 13 of 2015
Decompression sickness No. 14 of 2015
Pulmonary barotrauma No. 15 of 2015
Pulmonary barotrauma No. 16 of 2015
Dysbaric osteonecrosis No. 17 of 2015
Dysbaric osteonecrosis No. 18 of 2015
Albinism No. 19 of 2015
Albinism No. 20 of 2015
Charcot-Marie-Tooth disease No. 21 of 2015
Charcot-Marie-Tooth disease No. 22 of 2015
Haemophilia No. 23 of 2015
Haemophilia No. 24 of 2015
Marfan syndrome No. 25 of 2015
Marfan syndrome No. 26 of 2015
Gaucher's disease No. 27 of 2015
Gaucher's disease No. 28 of 2015
Alpha-1 antitrypsin deficiency No. 29 of 2015
Alpha-1 antitrypsin deficiency No. 30 of 2015
Horseshoe kidney No. 31 of 2015
Horseshoe kidney No. 32 of 2015
Wilson's disease No. 33 of 2015
Wilson's disease No. 34 of 2015
Osteogenesis imperfecta No. 35 of 2015
Osteogenesis imperfecta No. 36 of 2015
Huntington's chorea No. 37 of 2015
Huntington's chorea No. 38 of 2015
Autosomal dominant polycystic kidney disease No. 39 of 2015
Autosomal dominant polycystic kidney disease No. 40 of 2015
Von Willebrand's disease No. 41 of 2015
Von Willebrand's disease No. 42 of 2015
Multiple osteochondromatosis No. 43 of 2015
Multiple osteochondromatosis No. 44 of 2015
Trochanteric bursitis and gluteal tendinopathy No. 45 of 2015
Trochanteric bursitis and gluteal tendinopathy No. 46 of 2015

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AAT Bulletin		 issue 1/2015 aat