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How far can CSA go back?

Hubby received a letter today from  CSA stating the following:

1. that his income for the period 01/09/1999-31/08/2000 was XXXXXXX and that the estimated amount (for his income during that period) was $20,000.00 less than this.

His maintenance has always been based on his tax returns with the ATO sending the information through to CSA.

In 2000 he took his long service leave which was valued at approx $20K.  The settlement between he and his ex was that she keep the house and he keeps his long service leave.

How can CSA do this and what can we do to stop it.  They have issued him a fine for this.

Up until 3 years ago, maintenance was paid the ex via private agreement based on his current tax return for each year and the letter he received from CSA stating what amount he should be paying.  When the new legislation came into effect the ex denied him access to his children so her maintenance would not drop, unfortunately due to the age of the childre and alot of alienation is was not worth fighting.  She has not filed a tax return for 2008-2009 to date and is unlikely to because when she does her maintenance will likely go down and she won't file either because she knows she will be reported if she does not declare all her income (has boarders and doesn declare income from this).

If CSA can go back this far surely hubby can go back and claim all the extra money he gave her for the children for specialists etc during the last 7 years.

Last edit: by himandme

In their letter did they give any explanation of their decision?

Anyway, don't pay the penalty as you will probably be able to have it remitted once the issue is resolved.

As far as I know C$A can only go back 7 years so don't know why they are going back 10+ plus years.

If you have the settlement agreement in writing then write to the C$A explaining the situation providing a copy of the agreement.

Do this by sending a letter of objection to their decision.

If you give more info we may be able to offer more advice

Thank you so much for your reply.

The letter states that they are writing to advise the the Child Support Agency has determined that your actual and supplementary income for the period 22 September 1999 to 30 November 2000 was $XX,XXX.XX.  This amount is highter than the estimate of $XX,XXX.XX you gave us on 22 September 1999 for this period. (this is when they would have received his tax return).

What this means for you
Your child support liability has increased due to yoru income being more than you estimated……
When your actual income is 10% or more higher than the estimate lodged iwth CSA, we are required by law to impose a penalty, which for your case is $XXX.XX.  This will be shown in your next statement.  If you believe CSA should discharge these penalties please call us to discuss further.

Then it goes on about what you can do if you do not agree with CSA's decision, please call them rather tham write….

What has really upset us is that we have moved twice since than, the divorce lawyer at that time has moved on and it will be a long process to get proof that the extra they claim was from his long service leave payout.  As I said this payout was part of the property settlement, she got the house, hubby got the LSL.  There is no way hubby has EVER paid less maintenance than prescribed (actually overpaid) and has never done anything to try and diminish the amount he pays.  In the letter it does not say where they got this amount from (we are assuming this is the year his LSL was paid out), but that being the case why now?

We were also wondering why on earth they would be now going back that far, could the ex have rung them and informed them about the LSL and have forgotten to mention that she got the house at the same time?

We just don't know how to approach this.  What do we say to CSA, and is there anywhere in writing on the net or otherwise that states they can only go back 7 years that we can have in front of us when we contact them?
himandme said
In 2000 he took his long service leave which was valued at approx $20K. The settlement between he and his ex was that she keep the house and he keeps his long service leave.
Normally a court order or agreement made known to the CSA would be enough to satisfy. Cleary for some reason its not in this case. Is this letter brought on by some COA or other Child Support initiated investigation?
himandme said
She has not filed a tax return for 2008-2009 to date and is unlikely to because when she does her maintenance will likely go down and she won't file either because she knows she will be reported if she does not declare all her income (has boarders and doesn declare income from this).
The NCSM have raised an emerging issue about this very issue of failing to file tax returns. We support that view, where parents in the child support scheme do not file tax returns in a timely manner.
Lodgement of Taxation Returns

Parents & children who receive / pay child support.

Inadequate delays resulting incorrect income for families.  Most typically the negative impact is for the payee  

1 - Clarification regarding the timeframes in which taxation claims can be lodged.  
2 - Discuss the adequacy of the current process in context of the impact upon families.  

The delay in lodging taxation returns requires scrutiny to cease the practice of minimising and or avoidance of payment responsibilities.  





Executive Secretary - Shared Parenting Council of Australia
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Here is some info regarding the receipt of Family Benefits and lodgement of tax returns:

Families - Department of Human Services
Hi,



I am very new to this site, but just wanted to add that we have received a phone call from CSA today, with virtually the same circumstances as you've mentioned.



They advised that as a directive from the minister, they were reconciling old cases from 2000 on where there had been estimated income.  Three things which she told me, which may be helpful to you are:

1. Any penalties would be remitted, as this is an issue which has taken so long to be remedied by them

2. They would not be requiring evidence (paperwork) to support what we say ie if hubby tells them he worked for this employer for whatever paid, they would take him at his word.

3. Again, due to the fact that it's such an old "account", they would be able to be very flexible re payment arrangement, much more so than their normal guidelines say.

Hope this helps
Cleary for some reason its not in this case. Is this letter brought on by some COA or other Child Support initiated investigation?"

 Not that we are aware of. Hubby has definitely not instigated anything and this letter is they only thing we have received, totally out of the blue. This is why we are wondering if perhaps the ex is up to something. Maybe because she didn't file a tax return she lost her FTB and is trying to recoup some of her losses…. pure speculation here, just trying to work out why on earth this has happened.
I had a look in the C$A guide under "estimate reviews: and there is no mention of time limitations, however what has happened to you is like a CSA - initiated change of assessment and this is what the guide says:

CSA-initiated change of assessment:
Since 1 July 1999 CSA has been able to initiate a change to a child support assessment where it believes that the income, earning capacity, property and financial resources of either parent is not accurately reflected in the assessment (Reason 8). This is called a 'CSA-initiated change of assessment', or Registrar-initiated change of assessment. CSA cannot initiate a change to an assessment on the basis of any of the other reasons that a payer or payee can use to apply for a change of assessment.

CSA can initiate a prospective change to the assessment of child support and may also make a retrospective determination to change the assessment for up to eighteen months prior to the date upon which it notified the parties of the proposed change (section 98S(3B)(b)). CSA can apply to court for leave under section 112 to make a retrospective determination that changes the assessment for up to seven years prior to the day upon which it applies to the court for leave (section 111(3)).

I think you could argue that the 7 year rule would apply to your situation.

If the payment arrangement between the payer and payee was private collect at that time (2000), C$A will not be able to collect the arrears from your husband anyway. They will instead advise the payee that their only option is to have a court order payment. If the ex does this then you will be able to fight the case.

If this is the case, do not pay the penalty and wait and see if the ex starts legal action, and then under the Act you will be able to defend yourself.

Be very careful with the C$A - do everything in writing - they may apply a range of processes to collect the penalty by mysteriously changing the statements to show that you are always in arrears to make you pay more.

CSA are not backdating for maintenance, they are (as stated in their letter) "required by law to impose a penalty, which for your case is $XXX.XX".

We think that the ex may have been the one to cause this to happen if she is trying to get more money and CSA have gone hunting.

Another thing that has come to mind is that the oldest child is now 16 (for which maintenance is being paid) and studying full time and we think she may be getting the Youth Allowance, she has also been working weekends for the last 12 months.  How does youth allowance affect maintenance being paid and is there anyway we can find out if she is receiving it and what she receives in wages each week.  Unfortunately  we are dealing with a mother who has been deceiving Centrelink for over 10 years and the ATO, we have made reports but don't think anything has happened.  We find it to be unfair and unjust that hubby is fined for a LSL payout which was part of the property settlement over 12 years ago, but he only took that LSL payout 10.5 years ago.

If the oldest is getting youth allowance this could also explain why the ex is not fussed about losing the FBT for not having filed her tax return.  I spoke to CSA about this 2 months ago and they said to me that it is not up to them to chase payees to file tax returns that we would have to ring the ATO and report her.  Why bother… so frustrating.

Further information which has just come to mind.  They stated in the letter that hubby estimated his income to them for that period.  This is totally incorrect.  He was paying under private agreement and his payments were based on the letters he received each year after he did his tax return (ex went on to CL benefits when they  separated and had to report the maintenance to CSA back then).  CSA were not involved at all apart from sending out their yearly letter of what should be paid. Hubby never at any stage contacted CSA during that time to give them an income estimate, so where did they get this from ?

Last edit: by himandme

Fox in Sox said
They advised that as a directive from the minister, they were reconciling old cases from 2000 on where there had been estimated income.
Most unusual that the Minister Chris Bowen would issue such instruction which is at odds with what the legislation allows for. I will make an enquiry during the day with the CSA Policy Group to find out mioght be going on. My understanding as is others that a court order is required to go back that far.


Executive Secretary - Shared Parenting Council of Australia
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This situation is going from bad to worse.  Because of receiving this letter hubby did some investigating and found out that the eldest daughter for whom he is paying maintenance (2 children) left school mid last year and is working full time.  Surely this being the case maintenance is not payable and the ex should have informed CSA of the situation.  What do we do now?

Re the penalty, it has been remitted, but I was told that the legislation allows them to go back as far as they want to.  They have sent a letter to the ex stating the amount of maintenance she missed out on and I guess if she wants it she will have to take hubby to court for it.
Fairgo/Secretary_SPCA you may recall a discussion on here perhaps a year or so ago. Basically, if I recall correctly, a change of assessment (a departure from the formula i.e. changing how assessment is done) has limitations but their is no limit to making a change to an assessment (adjusting an assessment).
Mike - Isn't that the same as a CSA-initiated change of assessment?
Off topic somewhat, but a little birdy told me to have a look at how many CSA initiated COA's are currently being overturned on appeal in the last 12 months. I haven't myself had a look at yet. 

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
MikeT said
Fairgo/Secretary_SPCA you may recall a discussion on here perhaps a year or so ago. Basically, if I recall correctly, a change of assessment (a departure from the formula i.e. changing how assessment is done) has limitations but their is no limit to making a change to an assessment (adjusting an assessment).
Mike T I had a chat to Barry Williams today and he is leaping about and suggesting 2 years and court orders beyond that. So you suggest a change to an assessment is not constrained but a "change of" is constrained. No wonder the average CSA customer has no chance. Most wouldn't see any difference. Maybe we should bring up the old thread.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
himanme - that actually sounds like a good result. (penalty remitted) and the ex cannot collect the alleged arrears as a court can only go back 7 years.

He should put in a COA application regarding the daughter working full time. He will need proof beyond doubt of her situation. This may create an overpayment if the start date can be established as C$A should have been informed of the change in circumstances.

Good luck

PS: So what were C$A trying to achieve here?

      1) Truly acting in the best interests of the children.
      2) Following the legislation.
      3) Screw the payer.
      4) Increasing compliance in order to get their measly 0.5% pay bonus.

Last edit: by Fairgo

Fairgo said
Mike - Isn't that the same as a CSA-initiated change of assessment?

I don't think that it is and I don't think that's the point. To be a change of assessment COA, register initiated or not, at least one of the the reasons has to be applied (only 8 for RI if I recall correctly, sorry not going to check due to time constraints, it doesn't really matter) and the result is some form of departure from the formula based assessment process.

However if found that the formula has been applied wrongly, such as estimates wrong or perhaps a tax finding, …., then the change made is outside the scope of the change of assessment as such (sort of the reverse, not sure I'm explaining this that well), is not a change of the assessment process, rather it is a change to what has been assessed, a correction to an error.

It is this very subtle difference that the CSA are cashing in on, finding whatever reason possible to chase good honest parents to  "2 Joe's Gravediggers Inc.", likely so that flights around the world can be taken. (sorry in one of those sort of moods).

Secretary_SPCA said
Barry Williams today and he is leaping about and suggesting 2 years and court orders beyond that
Perhaps the above would help to explain. Wish I'd got some sort of tagging system then I'd be able to dig out the topic/post where I've said this before. If my workload drops I might have a look.
MikeT all forum posts can be tagged for later use by category. (You create the Category). Use the "Action on marked posts" drop down and tag a post or multiple posts if you have checked the small square check box to the right. The new "Search" facility should also do a reasonable job of tracking down what you need.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Secretary_SPCA,
                       I was complaining about myself not using the tagging system, I know it's there and have tagged a few things.
OK here's the post that I was talking about, the subtle difference is between amending an assessment (not COA) and COA.

CS amendments going back over 7 years (no time restriction)

Basically the CSA have done an appalling job with reconciling estimates and I believe there are mandates in place (due I think to the auditor general's report) about getting the backlog cleared.
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